1116e1:1111 

- MATTER OF PATEL 

In Section 246 Proceedings 

A-20289698 

Decided by Board January 25, 1978 

(1) Under the provisions of 20 C.F.R. 656.30(d), effective February 18, 1977, a labor 

certification issued by the Labor Department is subject to invalidation by the Immigration and Naturalization Service or the Department of State only upon a finding of fraud 

or willful misrepresentation of a material fact involving the labor certification application. 

(2) Matter of Hernandez-Uriarte, 13 I. & N. Dec. 199 (BIA 1969) interpreting 29 C.F.R. 

60.5(g), the regulation superseded by 20 C.F.R. 656.30(d), is superseded. 

(3) Since under the new controlling regulation a finding of fraud or willfulness is required 

to invalidate a labor certification duly issued by the Labor Department, and the 

immigration judge specifically refrained from making such a finding in view of our 

interpretation of the previously controlling regulation, the record is remanded for a new 

evidentiary hearing to allow the respondent and the Service an opportunity to explore 

the issue. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Peter D. Williamson, Esquire Daniel L. Kahn 

1320 Americana Building Trial Attorney 

Houston, Texas 77002 

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members 

This is an appeal from a decision of an immigration judge dated April 

13, 1977, ordering the rescission of the adjustment of status granted to 

the respondent. The appeal will be sustained and the record will be 

remanded for further proceedings. 

The record relates to a married female alien, native and citizen of 

India, whose status was adjusted to that of an alien admitted for 

permanent residence on May 7, 1975. Her status was adjusted primarily 

on the basis of a labor certification approved on January 22, 1974. The 

Service concluded that this labor certification was invalid- These rescission proceedings were instituted. 

The immigration judge found that the respondent's labor certification 

was invalid because it was obtained on the basis of materially incorrect 

representations to the Labor Department both as to the background of 

employment, and the potential employment in the United States. Although fraud was alleged by the Service in the Notice of Intention to 

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Rescind, the immigration judge specifically refrained from making a 

determination on the alleged fraud. The immigration judge found that 

the material misrepresentations found by him to have been made were 

sufficient to invalidate the labor certification under 29 C.F.R. 60.5(g). 

The immigration judge's finding as to the requirements to invalidate a 

labor certification under 29 C.F.R. 60.5(g) was correct under our interpretation of that regulation. See Matter of Hernandez-Uria.rte, 13 I. 

& N. Dec. 199 (BIA 190); Matter of Gonzalez-Becerra, 13 I. & N. Dec. 

387 (BIA 1969).' However, this case is not governed by that regulation. 

Effective February 131,, 1977, 29 C.P.R. 60.5(g) was superseded by 20 

C.F.R. 656.30(d). See 42 F.R. 3440 (January 18, 1977). This new controlling regulation reads: 

After issuance labor certifications are subject to invalidation by the INS or by a 

Consul of the Department of State upon a determination, made in accordance with those 

agencies' procedures or by a Court, of fraud or willful misrepresentation of a material 

fact involving the labor certification application. If evidence of such fraud or willful 

misrepresentation becomes known to a Regional Administrator, Employment and 

Training Administration or to the Administrator, the Regional Administrator or Administrator, as appropriate, shall notify in writing the INS or State Department, as 

appropriate. 

In view of the fact that a finding of fraud or of willful misrepresentations of a material fact involving the labor certification application 

is required under the new regulation to invalidate a labor certification, 

findings not made by the immigration judge because they were unnecessary under our interpretation of the previously controlling regulation, 

the record will be remanded for further proceedings before the immigration judge. A new evidentiary hearing should be conducted to allow 

the respondent and the Service to explore the issue. 

We note that the Service may deem it appropriate to amend the 

Notice of Intention to Rescind in light of our decision in Matter _of 

Darlquak, Interim Decision 2578 (BIA 1977), rendered subsequent to 

the institution- of these proceedings. 

ORDER: The appeal is sustained and the record is remanded for 

further proceedings. 

However, our interpretation of 29 C.F.R. 60.5(g) was disapproved by the United 

States Court of Appeals for the District of Columbia Circuit in Castaneda-Gonzalez v. 

INS, 564 F.2d 417 (D. C. Cir. 1977). 

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