Interim Decision #2668 

MATTER OF TONG 

In Deportation Proceedings 

A-20938473 

Decided by Board August 15, 1978 

(1) The word "employment" is a common one, generally used with relation to the most 

common pursuits, and therefore ought to be received as understood in common parlance 

and includes the act of being employed for one's self. 

(2) Unauthorized self-employment as a used car dealer is "unauthorized employment" 

within the purview of section 245(c) of the Immigration and Nationality Act (8 U.S.C. 

1255(c)) and precluded adjustment of status. 

(3) 8 C.F.R. 214-2(f)(6) provides that a nonimmigrant student is in violation of his status 

whether he engaged in off-campus employment in the United States for an employer or 

independently, unless his application to do so has first been approved by the Service. 

CHARGE: 

Order: Act of 1952—Section 241(a)(9) (8 U.S.C. 1251(a)(9))—Noninuaigrant—Failed to 

comply with conditions of status (Order to Show Cause-charge 

withdrawn) 

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

student—remained longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Mary L. Sfasciotti, Esquire Oliver H. Claypooldr. 

Sfasciotti, Stern & Sfasciotti Trial Attorney 

5825 Sixth Avenue 

Kenosha, Wisconsin 53140 

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members 

This case presents an appeal from a decision of the immigration judge 

on August 8, 1977, finding the respondent deportable on the lodged 

charge and granting him the privilege of voluntary departure, with an 

alternate order of deportation to Hong Kong. The immigration judge 

denied the respondent's application for adjustment of status, pursuant 

to the provisions of section 245 of the Immigration and Nationality Act, 

as amended. The appeal will be dismissed. 

the respondent is an unmarried native and citizen of Hong Kong who 

has resided in the United States since August 1971_ He is the beneficiary of a visa petition filed by his lawful permanent resident mother 

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and approved by the District Director in April 1975. The respondent 

was initially authorized to remain here as a student until June 15, 1976. 

He was granted the privilege of departing voluntarily by October 26, 

1976, without the issuance of an Order to Show Cause, but failed to 

leave this country. Deportability has been established by clear, convincing, and unequivocal evidence. 

The immigration judge noted the respondent's testimony that he has 

been self-employed since he opened a used car dealership known as 

Eddie's Auto.Sales on May 1, 1976 (Tr. p. 8), without permission from 

the Service (Tr. p. 13). The immigration judge found that the respondent, therefore, is precluded from qualifying for adjustment of status 

under the provisions of section 245(c) of the Act. Counsel contends on 

appeal that the respondent did not commence his business until one year 

after graduation from college in 1975 and was no longer a student in May 

1976. Counsel also contends that the immigration judge failed to address 

the issue as to whether self-employment constitutes unauthorized employment, as that term appears in section 245, and thereby precludes 

adjustment of status to aliens who have engaged in unauthorized employment. The Service contends that the term "employment," in section 

245 of the Act, includes within its meaning "self-employment" (p. 8). 

Section 245(c) of the Act, as amended by P. L. 94-571, 90 Stat, 2703, 

effective January 1, 1977, provides, in pertinent part, "The provisions of 

this section shall not be applicable to an alien . . . who hereafter con 

tinues in or accepts unauthorized employment prior to filing an application for adjustment of status. . . ." Counsel in her first brief contended 

that the respondent's "status approximates an investor and not an 

`employee' as that term is commonly used." It is the official position of 

the Service, however, that it considers unauthorized self-employment 

by a beneficiary of an approved relative visa petition as "unauthorized 

employment" within the purview of section 245(c). We are in agreement 

with this position.' Cf. Matter of eh,en g , Interim Decision 2623 (BIA 

1977). In the latter case, it was noted that on July 18, 1977, the Central 

Office of the Service issued an instruction to all field offices whereby 

nunc pro tune authorization to accept employment was to be granted to 

any alien who was the beneficiary of a visa petition filed before January 

10, 1977, and who•could, under 8 C.F.R. 245.2(a)(2), have properly filed 

an application for adjustment with that visa petition. In the instant 

ease, the respondent cannot possibly benefit from the Service instrac8 C.F.R. 214.2(f)(6) provides, in pertinent part, that a nonimmigrant student is in 

violation of his status whether he engages in off-campus employment in the United States 

for an employer or independently (i.e. self-employed), unless his application to do so has 

first Been appriropyl by tha Serzieo_ (Emphasis supplied.) The word "independently" "as 

added effective September 2, 1975 (40 F.R. 32312, 8/1175). 

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tion because he is a native of Hong Kong and a visa was never immediately available to him before January 10, 1977. 

The word "employment" is a common one, generally used with relation to the most common pursuits, and therefore ought to be received as 

understood in common parlance. The word "employment" is also defined 

as meaning the act of being employed for one's self (30 C.J.S. 682). It 

should be self-evident, in view of all of the foregoing, that any and all 

types of employment taken without proper authority constitute unauthorized employment. 

A nonimmigrant alien has the obligation either to depart at the 

expiration of his authorized period of stay, or to obtain a proper extension of that stay. In order to establish an alien's deportability as an 

"overstay," the Service need only show that the alien was admitted as a 

nonimmigrant ". . . for a temporary period, that the period has elapsed, 

and that the nonimmigrant has not departed." See Milande v. INS, 484 

F.2d 776 (7 Cir. 1973); Matter of Teberen, Interim Decision 2498 (BIA 

1976). It should be clear that the respondent, no longer a student, is an 

"overstay" in this country and has remained in the United States illegally. 

Upon review of the recur d, we find that the decision of the immigration judge was correct in the circumstances of this case. He granted the 

respondent a period of two months for voluntary departure. We have 

held that in those eases in which a period exceeding 30"days has been 

granted, the respondent will be given 30 days from the date of our 

decision in which to depart voluntarily. See Matter of Chowliaris, 

Interim Decision 2572 (BIA 1977). The District Director, however, is 

authorized to extend that period in his discretion. See 8 C.F.R. 244.2. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: The respondent is permitted to depart from 

the United States voluntarily within 30 days from the date of this order 

or any extension beyond that time as may be granted by the District 

Director; and in the event of failure so to depart, the respondent shall be 

deported as provided in the immigration judge's order. 

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