Interim Decision #2499 

MATTER OF HO 

In Deportation Proceedings 

A-20838127 

A-20838128 

Decided by Board June 17, 1976 

Operations Instruction 245.4(a)(6) which provides that a case will be held in abeyance 

where the sale basis for applicant's ineligibility for relief under section 245 of the 

'Immigration and Nationality Act is the unavailability of a visa number occurring 

subsequent t3 the filing of the application is applicable to section 245 applications filed in 

deportation proceedings where the respondents were qualified for adjustment of status 

in all other respects and the sole ground for respondents' ineligibility for such relief was 

that visa numbers which had been available at the time the applications were first filed 

had become unavailable at the time the applications were processed. 

CILUIOR; 

Order: Act of 1952—Section 241(a)(2)—[8 U.S.C. 1251(a)(2)J—Nonimmigrant 

visitor—remained longer than permitted (both respondents) 

ON BEHALF OF RESPONDENTS: 

Norman Glassman, Esquire 

363 Seventh Avenue 

New York, New York 10001. 

ON BEHALF OF SERVICE: 

Paul C. Vincent 

Chief Trial Attorney 

Richard K. Rogers 

Acting Trial Attorney 

In a decision dated August 5, 1975, we denied the respondents' motion 

to reopen their deportation proceedings. The respondents have submitted a motion seeking reconsideration of that decision. The motion will be 

granted and the record remanded to the immigration judge. 

The respondents, husband and wife, are natives and citizens of China. 

They have conceded deportability under section 241(a)(2) of the Immigration and Nationality Act as nonimmigrants who have remained beyond the authorized length of their stays. The only questions confronting us on this motion involve their applications for adjustment of status 

under section 245. 

The female respondent has evidently been granted a labor certification pursuant to section 212(a)(14), and she seeks adjustment of status 

as a nonpreference immigrant. The male respondent also seeks section 

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245 relief as a nonpreference immigrant, but his case is entirely dependent on his wife's eligibility because he does not claim that he is independently admissible under section 212(a)(14). 

One of the requirements for section 245 relief is that an immigrant 

visa must be immediately available to the alien at the time his application is approved. The record indicates that the respondents submitted 

their applications for adjustment of status (Form 1-485) on May 12, 

1975. According to the Department of State bulletin entitled Availability of Immigrant Visa Numbers For May 1975, visa numbers were then 

currently available to natives of China seeking nonpreference status. 

However, in June of 1975, the month after the respondents submitted 

their section 245 applications, nonpreference visa numbers for natives of 

China became completely unavailable. As of the ,date. of this,decision, 

visa numbers remain unavailable to the respondents. 

The respondents' applications for adjustment of status were treated 

as a motion to reopen their deportation proceedings in accordance with 8 

CFR 242.22. In our order of August 5, 1975, we denied the motion 

because nonpreference visa numbers were unavailable to the respondents, and the respondents therefore could not establish eligibility for 

section 245 relief. • 

In the motion to reconsider, counsel argues that our decision is not in 

keeping with a Service policy .expressed in Operations Instruction 245.4 

(a)(6). 1This Operations Instruction. specifically applies to aliens who 

have submitted section 245 applications to district directors for adjudication. It provides for the holding in abeyance-of any Case in which. an 

alien has submitted a section 245 application.at a time when a visa 

number was available to the alien, but in which the alien is now precluded from receiving that relief solely because a 'visa number-is not 

available at the time the processing of the application -is completed. The 

Operations Instruction further provides for-the•periodic review of all 

such cases in order that an alien's adjustment of status may take place 

shortly after a visa number again becomes available. . 

Counsel for the respondents contends.•hat Operations Instruction 

245.4(a)(6) should be applicable in a deportatfun ;proceeding, even 

though jurisdiction over a section 245 application no longer lies with a 

district director after the alien has been served with an order to show 

cause or warrant of arrest. See 8 CFR 245.2(a)(1). We requested a brief 

from the Service on this question. The Service has informed us that it 

believes that the Operations Instruction should be applicable to the case 

of an alien who is in deportation proceedings, and has submitted a 

motion seeking a conditional termination of these proceedings. 

1Operations Instruction 245.4(a)(6) is quoted in its entirety in the addendum to this 

opinion. 

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We too are persuaded that Operations Instruction 245.4(a)(6) should 

not be foreclosed to an alien merely because he happens to apply for 

adjustment of status after having been placed in deportation proceedings. The motion to reconsider will be granted and the record remanded 

to the immigration judge for further action consistent with this opinion. 

ORDER: The motion to reconsider is granted, the outstanding order 

of deportation is withdrawn, and the record is remanded to the immigration judge. 

ADDENDUM 

Operations Instruction 245.4(a)(6) Subsequent 'unavailability of a 

visa number. In any case in which, at the time the application was 

submitted or at the time the alien was invited to submit the application, 

the Visa Office Bulletin indicated that an immigrant visa number was 

available, but the application cannot be approved solely because a visa 

number is r ot available at the time the processing of the case is completed, it shall be held in abeyance pending the allocation of a visa 

number by the Visa Office. Those cases held in abeyance pending the 

allocation of a nonpreference visa number shall be periodically reviewed 

to screen out any applicant who appears eligible for a preference classification. Any applicant who appears to be eligible for a preference 

classification shall he informed and instructed how to proceed. In all 

such cases Feld in abeyance pending allocation of a visa number, Form 

I-181, in duplicate, bearing the stamped notation "HOLD FOR VISA 

NUMBER" in the upper right-hand portion of the box labeled "For use 

by the Visa Control Office" shall be forwarded to the Visa Control Office 

to insure that a visa ,number will be allocated when one becomes available. Similarly, when a different preference is established, a new Form 

1-181 prepared in accordance with the foregoing shall be forwarded to 

the Visa Control Office: When a visa number is available in these cases, 

the Visa Control Office will return Form 1-181 endorsed to show allocation of an immigrant—visa number for the month following the month 

notification is furnished to the Service. This will allow sufficient time to 

complete any unfinished processing. 

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