Interim Decision #2684 

MATTER OF GARCIA 

In Deportation Proceedings 

A-20066063 

Decided by Board December 27, 1978 

(1) Rule that reopening of proceedings will be denied absent a prima facie showing that the 

statutory requirements for relief have been met must be reexamined as to adjustment 

of status in view of the amendment of 8 C.F.R. 245.2(a)(2) permitting an adjustment 

application, filed with a visa petition, to be retained if later approval of the petition 

would make a visa available at time of filing. 

(2)8 C.F.R. 245.2(a)(2), permitting simultaneous filing of an application for adjustment of 

status and a visa petition, applies both before andafter the issuance of an Order to Show 

Cause. 

(3) Service policy permits a prima facie qualified beneficiary of a visa petition to remain in 

the United States pending final adjudication of the petition and an adjustment application. 

(4) Unless clear ineligibility is apparent in the record, the Board shall generally grant 

motions to reopen in cases involving an application for adjustment of status filed 

simultaneously with a visa petition pursuant to 8 C.F.R. 245.2(a)(2), notwithstanding 

the fact that the petition has not yet been adjudicated. 

(5) An immigration judge may, in his discretion, grant a motion to reopen or a request for 

a continuance of a deportation hearing pending final adjudication of a visa petition filed 

simultaneously with an adjustment application under 8 C.F.R. 245.2(a)(2) where a 

prima facie approvable visa petition and adjustment application have been submitted to 

him. Matter of Kotte, Interim Decision 2634 (BIA 1978) clarified. 

CHARGE: 

0 rder. Act of 1952—Section 241(a)(2) [8 U.S.G. 1251(a)(2)1—Nonimmigrant—remained 

longer than permitted 

ON BEHALF OF RESPONDENT: Claude Henry Kleefield, Esquire 

Suite 1408-1414 

1860 Broadway 

New York, Nov York 10023 

BY: ➢ ilhollan, Chairman, Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated June 6, 1978, the Board dismissed an appeal from 

the October 17, 1977, decision of an immigration judge wilieh found three 

respondents deportable as overstays pursuant to section 241(a)(2) of the 

Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), denied their 

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applications for suspension of deportation pursuant to section 244(a)(1) 

of the Act, 8 U.S.C. 1254(a)(1), but granted them the privilege of 

voluntary departure in lieu of deportation. The male respondent, who 

will hereafter be referred to as the respondent, now moves to reopen 

the deportation proceedings to permit him to apply for adjustment of 

status pursuant to section 245 of the Act, 8 U.S.C. 1255. The motion will 

be granted. 

In order to qualify for adjustment of status under section 245, as 

amended,' an alien must apply for adjustment, establish that he is 

eligible to receive an immigrant visa and is admissible to the United 

States for permanent residence, and that an immigrant visa is immediately available to him at the time his application is filed. We have 

held that absent a prima facie showing that the statutory requirements 

for the relief sought have been met, reopening of the proceedings is 

generally inappropriate. See Muter of Lanz, 14 I. & N. Dec. 98 (BIA 

1972); Matter of Sipus, 14 I. & N. Dec. 229 (BIA 1972). 

The respondent's motion to reopen for consideration of his application 

for adjustment of status 2is predicated upon a visa petition filed by his 

United States citizen spouse to accord him immediate relative status 

under section 201(b) of the Ad, 8 U.S.C. 1151(b). The visa petition, 

which was filed simultaneously with the respondent's adjustment application pursuant to amended regulation 8 C.F.R. 245.2(b)(2), has not yet 

been approved and the respondent consequently cannot at present establish immediate visa availability, a statutory prerequisite to a grant of 

section 245 relief. 

We have examined our policy with respect to the disposition of motions to reopen for consideration of adjustment applications based upon 

as yet unadjudicated visa petitions in light of the present regulation 

permitting simultaneous filing. In order to give what we consider to be 

appropriate effect to the simultaneous filing provisions of 8 C.F.Xi. 

245.2(a)(2), as amended, we shall hereafter generally reopen the deportation proceedings in such cases -unless clear ineligibility is apparent in 

the record. 

The 1976 Amendments to the Act amended section 245 to designate 

the date the adjustment application is filed, rather than the date it is 

approved, as the date to be used in determining whether a visa is 

immediately available. Concomitant with the effective date of tine 

amendment to the statute, the Service amended its regulation 8 C.F.R. 

245.2(a)(2) to allow an adjustment application filed simultaneously with 

a. visa petition to be retained for processing provided that the 

11976 Amendments to the Immigration and Nationality Act, Pub. L. 94-571, 90 Slat. 

2703 (effective January 1, 1977). 

2Under 8 C. F.R. 242.22, the filing of an application for adjustment of status may 1e 

considered a motion to reopen. 

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Interim Decision #2684 

subsequent approval of the petition would make a visa immediately 

available at the time the adjustment application is filed. The amended 

regulation provides in pertinent part: 

(2) Filing application. Before an application for adjustrnp.nt of status tinder section 245 

of the Act may be considered properly filed, a visa must be immediately available. If a 

visa would be immediately available only upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If 

a visa petition is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing an ly if approval of the petition 

when reached for adjudication would make a visa immediately available at the time of 

filing of the adjustment application. If such petition is subsequently approved, the date 

of filing the adjustment application shall be deemed the date which the accompanying 

petition was filed. (Emphasis supplied.) 

In order for an alien's adjustment application to be accepted for 

processing under the simultaneous filing provisions of 8 C.F.R. 

245.2(a)(2), he must establish, inter alia, that a visa would be immediately avilable to him at the time of filing but for the tact that his 

visa petition has not yet been approved. By deeming the filing date of 

the adjustment application to be the date the accompanying petition is 

filed, the amended regulation insures that the beneficiary of a prima 

facie approvable visa petition, who is subsequently found to have been 

fully qualified in fact for adjustment of status at the time of simultaneous filing, will not luse Lis eligibility by virtue of the fact that visa 

numbers may no longer be available to him by the time his petition is 

approved and his adjustment application may accordingly be considered 

properly filed. Thus, the regulation allows an otherwise qualified applicant to preserve immediate visa availability and, hence, eligiblity for 

adjustment of status throughout the often protracted period of administrative processing. It is evident that the benefit bestowed by the regulation would be illusory were such alien to become or remain subject to 

the execution of an order of deportation during the processing period. 

It has been suggested that the simultaneous filing provisions of 8 

C.F.R. 245.2(a)(2) were designed to apply only where the visa petition 

and adjustment application are submitted to the District Director prior 

to the institution of deportation proceedings. We find that neither the 

language of the regulation itself nor policy considerations support an 

interpretation which would render the regulation nugatory after an 

Order to Show Cause has been issued and we decline to adopt such a 

restrictive interpretation. Such interpretation, moreover, appears to 

have been rejected by the Service as a matter of policy. 

Subsequent to the effective date of the amendments to the statute and 

the regulations, the Service adopted a policy of refraining from either 

deporting or instituting proceedings against the beneficiary of a prima 

facie approvable visa petition if approval of the petition would make the 

beneficiary immediately eligible for adjustment of status. Immigration 

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Interim Decision #2684 

and Naturalization Service Operations Instructions 242.1(a)(25) and 

245.1(a). 3The normal procedure, then; where such petition and adjustment application have been accepted for processing by the District 

Director prior to the issuance of an Order to Show Cause, is to hold the 

adjustment application in abeyance pending final adjudication of the visa 

petition. By virtue of Operations Instruction 242.1(a)(25), an Order to 

Show Cause will not ordinarily be issued in the meantime. 

The Instruction is not, however, limited to cases in which the visa 

petition and adjustment application are submitted to the District Director prior to the institution of deportation proceedings but, rather, proscribes as well the deportation of a beneficiary of an unadjuclicated visa 

petition who has made a colorable showing of eligibility for adjustment 

of status on the basis of his claimed preference status. Thus, it is clear 

from the express language of Operations Instruction 242.1(a)(25) that its 

underlying policy of allowing a prima facie qualified beneficiary of a visa 

petition to remain in the United States pending final adjudication of the 

petition and adjustment application was intended to apply to an alien 

who, although indisputably deportable, can demonstrate a substantial 

claim to relief from deportation under section 245 of the Act. 

In Matter of Kotte, Interim Decision 2634 (BIA 1978), a case which 

dealt with the same issue in a different procedural context, we held that 

notwithotandimg the foregoing changes in the statute and the regulations, an alien does not have an absolute right to an adjournment of a 

deportation hearing until such time as the visa petition upon which his 

adjustment application is predicated has been adjudicated. Implicit in 

our holding, however, is the corollary proposition that an immigration 

judge may, in his discretion, grant a continuance or reopen a deportation hearing p ending final adjudication of the petition. For the reasons 

that led us to our conclusion that a motion to reopen for consideration of 

3Operations Instruction 242.1(a) states: 

(25) See 01 245.1(a) before issuing an order to show cause against an alien who may be 

eligible to apply for adjustment of status. 

Pending final adjudication of a petition which has been filed, the district director will not 

deport, or institute proceedings against, the beneficiary of the petition if approval of the 

petition would make the beneficiary immediately eligible for adjustment of status under 

section 245 of the Act or for voluntary departure under the Service policy set forth in 

Operations Instruction 242.10(a)(6)(i). The district director may, however, seek to 

deport or institute proceedings against the beneficiary when it is determined that the 

petition is frivolous or there are substantial adverse factors which, based on the district 

director's opinion, would probably lead to the denial of adjustment of status or extended 

voluntary departure in the exercise of discretion. 

Operations Instruction 245.1(a) provides in pertinent part: 

An otherwise eligible alien who is unlawfully in the United States and who has riot 

heretofore filed a section 245 application shall normally be afforded an opportunity to Ole 

such an application prior to the institution of deportation proceedings. 

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an adjustment application should not be denied solely because the accompanying visa petition has not yet been approved, we believe that 

discretion should, as a general rule, be favorably exercised where a 

prima facie approvable visa petition and adjustment application have 

been submitted in the course of a deportation hearing or upon a motion 

to reopen. To the extent that our decision in Matter of Kotte, supra, may 

have been misinterpreted to require a contrary disposition in such 

cases, Kotte is herewith clarified. 

We do not intend, by our holding, to establish an inflexible rule 

requiring the immigration judge in all cases to continue the deportation 

proceedings at the initial hearing or on remand or, in another procedural 

context, to reopen the proceedings pending final adjudication by the 

District Director of the visa petition. It dearly would not be an abuse of 

discretion for the immigration judge to summarily deny a request for a 

continuance or a motion to reopen upon his determination that the visa 

petition is frivolous or that the adjustment application would be denied 

on statutory grounds or in the exercise of discretion notwithstanding 

the approval of the petition. We are satisfied that the breadth of the 

immigration judge's discretion, together with continuing efforts by the 

Service to expedite the processing of visa petitions submitted simultaneously with applications for adjustment of status,' should serve to 

alleviate concerns that the policy announced herein will result in unduly 

delaying the entry of final orders of deportation in unmeritorious cases. 

In the present case, the respondent simultaneously submitted the 

visa petition and adjustment application as authorized by 8 C.F.R. 

245_2(a)(2). However, the visa petition and supporting documents, 

rather than having been retained for adjudication by the Service office 

having jurisdiction over the case, were included in the record file forwarded to the Board for consideration of the respondent's motion to 

reopen. Approval of the visa petition is not possible so long as the 

petition is before the Board and no apparent attempt was made by the 

District Director to adjudicate the petition prior to its transmittal to us. 3 

The evidence submitted in support of the visa petition makes out a 

colorable showing that the respondent qualifies for immediate relative 

' A recent development in this regard was the introduction by the Service of a 

consolidated, simplified form to replace Forms 1-130 and 1-485, the relative petition and 

adjustment of status forms, in cases involving simultaneous filings under 8 C.F.R. 

245.2(a)(2). The Service has also announced its intention of similarly combining the 

1-140 petition with the 1-485 in the near future. See the Service's Commissioner's 

Communique dated March 6, 1978. 

In the interest of expediting administrative processing in such cases, it would seem 

to be a better practice for the Service office to retain the original visa petition and 

supporting documents for adjudication, noting in the record file that the petition has 

been submitted, and to forward the remaining portion of the record file to the Board for 

consideration of the motion. 

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status as the spouse of a United States citizen and, hence, that an 

immigrant visa will be immediately available to him on the basis of such 

status when the visa petition filed on his behalf is reached for adjudications There is no indication in the record that he is otherwise ineligible 

for a grant of section 245 relief. Accordingly, without reaching any 

conclusion as to the Ultimate merits of the visa .petition filed on the 

respondent's behalf or of his application for adjustment of status, we 

shall grant the motion and remand the record to the immigration judge 

for further, proceedings consistent with the foregoing opinion. 

ORDER: The motion is granted. The proceedings as to the moving 

respondent are reopened and the record is remanded to the immigration 

judge for further proceedings consistent with the foregoing opinion. 

FURTHER ORDER: If discretionary relief should be granted by the 

immigration judge, the outstanding order of deportation shall be withdrawn. 

4 The respondent's spouse submitted a certified translation of her birth certificate 

evidencing her United States citizenship and a certified copy of her certificate of 

marriage to the respondent. The visa petition recites that neither the respondent rlor 

his wife had ever entered into a prior marriage. Thus, it appears that the documentary 

requirements of 8 C.P.R. 204.2 have been fully satisfied. 

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