Matter of Stevens (Board decision, April 12, 1968)

Plain-English summary

A British visitor applied to adjust her status to permanent residence using a labor certification obtained for domestic work with a particular employer. That employer had let her go and sought to withdraw the supporting form. The Board held that the certification was no longer valid and that she needed a new one to qualify for adjustment. It declined to delay the case while she sought another certification and dismissed her appeal. The special inquiry officer's voluntary departure order remained in place.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1251(a)(2), 1255, and 1182(a)(14)
• Outcome: The appeal was dismissed, leaving the adjustment denial and voluntary departure order in place.
• Key point: A labor certification tied to an employer who no longer employed the applicant could not support adjustment of status.

Full text (BIA official public release)

Interim Decision #1853

MATTER OF STEVENS

In Deportation Proceedings
A-13079128
Decided by Board April 12, 1968
Where an applicant for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, subject to the labor certification requirements of section 212(a) (14) of the Act, is no longer employed by the employer who obtained the labor certification submitted in conjunction with her application, such certification is no longer valid for adjustment of status purposes and she is statutorily ineligible for the benefits of section 245 in the absence of a new certification.

CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Remained
longer, visitor.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Hiram W. Ewan, Esquire
William S. Howell
1011 North Broadway
Trial Attorney
Los Angeles, California 90012 (Brief filed)
(Brief filed)

The respondent, a native and citizen of Great Britain, appeals from
an order entered by the special inquiry officer on December 6, 1967
granting her voluntary departure in lieu of deportation as an alien
who after admission as a nonimmigrant visitor has remained longer
than permitted (8 U.S.C. 1251 (a) (2) ). Exceptions have been taken to
the denial of the respondent's application for an adjustment of her
status to that of a permanent resident alien pursuant to section 245
of the Immigration and Nationality Act (8 U.S.C. 1255).
The respondent, a divorced female alien, 29 years of age, last entered
the United States through the port of Blaine, Washington on or about
July 3, 1961. She was admitted as a nonimmigrant visitor and thereafter authorized to remain in the United States until September 10, 1963. She has remained in the United States subsequent to Septem-

ber 10, 1963 and concedes that she is deportable as charged in the order
to show cause.

694

Interim Decision #1853
The respondent has applied for an adjustment of her status to that
of a permanent resident alien pursuant to the provisions of section 245
of the Immigration and Nationality Act. The application discloses
that the respondent will have to engage in employment in the United
States. As a nonpreference immigrant, the respondent is required to obtain a labor certification as a condition precedent for eligibility for relief under section 245 (supra) (8 U.S.C. 1182 (a) (14) ). A labor certification required by section 212(a) (14) of the Act was issued on July 14, 1967 based upon the respondent's employment as a domestic with James C. Thomas. A report of investigation conducted at Los Angeles, California dated September 29, 1967 together with a sworn statement executed by the respondent's former employer, James C. Thomas, on September 28, 1967 establishes, inter alia, that the respondent is no longer employed by him; that he had to let her go because there was not enough work for her; and that he desired to withdraw Form ES-575B previously submitted in the respondent's behalf. Since the respondent is no longer employed by the person who petitioned in her behalf for a labor certification, the certification is no longer of any validity in this proceeding and she requires a new certification. Accordingly, the respondent is not eligible under the law and regulations to status as a permanent resident alien at this time. The respondent is the mother of a child born in the United States. Counsel in his brief moves for a remand of the case to the special inquiry officer for further hearing at such time as the respondent is able to secure a labor certification and adjust her status to that of a permanent resident alien. The trial attorney on the other hand maintains that the respondent neither warrants nor should be granted any further consideration inasmuch as there is a record of dilatory tactics on the part of the respondent dating back to September of 1961. We have carefully reviewed the record together with the briefs of

both counsel and the trial attorney. The fact that the respondent is the
mother of a child born in the United States is of no aid to her in connection with her application for adjustment of status inasmuch as the child is under the age of 21 years. Counsel's request for further delay is speculative as there is no assurance that a labor certification will be issued. The appeal will be dismissed. ORDER : It is directed that the appeal be and the same is hereby dismissed.

695