Kawahara, Glenn N.

, Esquire
1055 Wilshire Blvd. #1890
Los Angeles, CA 90017 -0000
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pke, Suite 2000
Fall Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel SND
880 Front St., Room 1234
San Diego, CA 92101-8834
Name: LEE, DO KYUNG A 089-047 -352
Riders:089-047-354 089-047-355 089-047-353
Date of this notice: 11/5/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Cole, Patricia A.
Sincerely,
Do. { t
Donna Car
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)
U.S. Department of Justce
Executive Ofce'fr Imigration Review
Decision of the Board of Imigation Appeals
Falls Chuch, Virginia 22041
Files: A089 047 352 - Sa Diego, CA
A089 047 353
A089 047 354
A089 047 355
In re: DO KYNG LEE
HYU KOO KIM
JI WA KIM
NA YOUNG KM
IN RMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENTS: Glen N. Kawaaa, Esquire
ON BEHALF OF DHS: J.L. Woodmansee
Assistant Chief Counsel
CHARGE:
NOV
. 62013
Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] -
In the United States in violation of law (all respondents) (sustained)
APPLICATION: Adjustment of status
Te respondents, natives and citizens of South Korea, have appealed the September 12, 2011,
decision of the Immigration Judge denying the lead respondent's application fr adjustment of
status ad granting the respondents te privilege of voluntar depaure. See sections 240B(b)
and 245 of the Immigation ad Nationality Act, 8 U.S.C. 1229c(b), 1255. Te appeal will be
sustained. Te record will be remanded.
Te respondents are wif and husband and their son and daughter (l.J. at 2). The
Immigration Judge fund that they were admited to the United States as nonimmigants on E-2
investor visas, that the husband respondent (A089 047 353) was the principal, and that they
remained i such nonimmigant status until March 2009 (1.J. at 2). The Immigation Judge noted
that subsequently, the wif respondent (A089 047 352) applied fr adjustment of stats based on
a approved visa petition and labor certifcation fled on her behalf, which the Depament of
Homelad Secuty (DHS) denied (l.J. at 2; Exh. 7). Accordingly, fr purposes of tis decision,
the wif respondent is the lead respondent.
The Immigration Judge observed that the DHS denied the lead respondent's adjustent
application because she was employed as a dental technician fom September 2003 until
October 2007 and ten again afer October 2008 without having obtained employment
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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)
'
' . .
.'
A089 047 352,_ et al.'
authorization (I.J .at 3-4 ). 1 In his aalysis, te Immigation Judge took account of the relevat
sections of the Act ad regulations ad concluded that it is implied that te lead respondent was
required to apply fr work authorzation in order to be employed such that she is barred fom
adjustment under section 245( c) of the Act (I.J. at 4-5).
On appeal, te lead respondent argues tat nothing in te statute or regulations sets frth an
application procedure or work autorization application requirement fr E-2 spouses.
Section lOl(a)(lS)(E) of the Act, 8 U.S.C. l lOl(a)(lS)(E), provides that a "nonimigant"
includes a aien entitled to enter the United States under and in pursuace of the provisions of a
teaty of commerce ad navigation between the United States and a freig state of which he or
she is a national, and the spouse ad children of any such alien if accompanying or fllowing to
join (Emphasis added).
Section 214( e )( 6) of the Act, 8 U.S. C. 1184( e )( 6), states that in the case of a alien spouse
admitted under section 10l(a)(l5)(E) of the Act who is accompaying or fllowing to join a
principal alien admited under the same section, the Attorey General shall authorize the alien
spouse to engage in employment ad provide the spouse wit an "employment authorized"
endorsement or other appropriate work perit (Emphasis added).
8 C.F.R. 274a.12(b)(5) (2013) indicates that a nonimmigrant treaty investor (E-2) is
authorized to be employed in the United States by the specifc employer and is not issued an
employment authorization document. The regulation states fer tat employment
authorization does not extend to te dependents of te treaty investor (E-2) unless otherise
specifed uder 8 C.F.R. 274a.12(c)(2). This regulation, entitled "Aliens who must apply fr
employment autorzation," provides that an alien spouse or unmarried dependent son or
daughter of a nonimmigrat treaty tader (E-1) must apply fr work authorization. However, the
regulaton does not specifcally state that the spouse of a treaty investor (E-2) must do the same.
Consequently, the Act under section 214(e)(6) states that an E-2 spouse such as the lead
respondent shal be authorized to engage in employment, but the reguations addressing aliens
who must apply fr employment autorization do not state that an E-2 spouse is included.
Section 24S(c)(2) of the Act states that a alien who continues in or accepts unauthorized
employment prior to fling an adjustment application is not eligible fr adjustment of status.
However, section 214(e)(6) of the Act authorized the lead respondent to engage in employment.
Additionaly, an alien is ineligible fr adjustent under section 245( c )(8) of the Act if he or
she was employed while the alien was an "unauthorized alien" under section 274A(h)(3) of the
Act, 8 U.S.C. 1324a(h)(3). A unautorized alien means with respect to te employment of a
alien at a paicula time that the alien (A) is not a permaent resident or (B) authorized to be
employed under te Act. However, although the lead respondent is not a peranent resident,
again uder section 214(e)(6) of the Act, she was authorzed to be employed as a E-2 spouse.
1 The Immigation Judge fund that the lead respondent did obtain an employment authorization
document fom te DHS fom October 2007 until October 2008 (l.J. at 3).
2
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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)
1
A089 047 352

et al. '
Accordingly, while we acknowledge the appaent anomaly, also noted by the Immigation
Judge (l.J. at 6), tat the regulations require the principal E-2 visa recipient to apply fr
employment authorization but do not cover a dependent spouse, we must enforce ad apply the
regulations as written. Tus, we disagee wit the Immigration Judge that under the Act or
regulations the lead respondent is bared fom adjustent of status under section 245( c) of the
Act. Upon our de novo review, we reverse the Immigation Judge's decision. See 8 C.F.R.
1003.l(d)(3)(ii) (stating that te Boad reviews questions of law, discretion, and judgment de
novo).
Furterore, the Immigration Judge denied te lead respondent's adjustment application
stating that only pa of the application was submitted, that her third prefrence skilled worker
category was not curent, ad that she had not had her fngerrints taen (l.J. at 5). However, the
record contains te adjustment application (I-485) and an approved visa petition ad labor
cerifcation. Additionally, the August 2013 DHS visa bulletin indicates tat her preference
category ha now progressed so that her priority date is curent. Finally, regarding the lack of
updated biometics, the record does not refect tat te DHS complied with 8 C.F.R.
1003.47(d). See Qi Cui v. Muksey, 538 F.3d 1289, 1294 (9th Cir. 2008).
Accordingly, we fnd remand waranted. On remad, the Immigation Judge will fher
address the lea
d
respondent's eligibility fr adjustent of status, as well as that of te derivative
respondents. The respondents will also have the opportunity to comply with the fngerprinting
requirements.
ORER: The respondents' appeal is sustained.
FURTHER ORER: The record is remaded to the Immigation Cou fr fer
proceedings consistent wit the fregoing opi
n
ion and fr entry of a new decision.
3
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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)
/
j
`
U. S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTION REVIEW
IMMIGRATION COURT
San Diego, California
File A 89 047 352, et al Date:
In the Matter of
DO KYUG LEE, et al
Respondent
S
CHARGE:
APPLICATIONS:
APPEARACES:
Section 237(a) (1) (B) of the Immigration and
Nationality Act (ACT) - an alien who after
admission as a non immigrant under Section
lOl(a) (15) of the Act remained in the United
States for a time longer than permitted.
Adjustment of status pursuant to Section 245
of the Act and in the alternative for all
Respondents, voluntary departure at conclusion
of proceedings under Section 240B (b) of the
Act.
ON BEHLF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT
OF HOMELAD SECURITY:
Glenn Kawahara, Esquire Jennifer L. Woodmansee, Esquire
ORAL DECISION OF THE IMMIGRATION JUDGE
This oral decision is being rendered live in the
presence of the parties on September the 12th, 2011 in San Diego,
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California at the conclusion of the presentation of the evidence
in this case.
All Respondents are charged as natives and citizens of
the Republic of South Korea who were admitted to the United States
on or about February 23, 2001 as non immigrant E-2 investors with
authorization to remain in the United States for a period of time
which was extended until March 28, 2009. It is alleged that the
Respondents all remained in the United States beyond March 28,
2009 without authorization from the DHS and that is the basis for
their charge of removal.
All Respondents, through Counsel, admitted and conceded
that they were removable as charged and the Court so finds.
It is important first to identify the Respondents here
to understand the nature of the relief at this stage of the case.
The lead Respondent, Ms. Lee, is married to Respondent, Hyun Koo
Kim, File 089 047 353. Gin Wan Kim and Na Young Kim are their
children.
Originally, Mr. Kim, the husband was the principal
recipient of the non immigrant E-2 investor visa. The lead
Respondent, Ms. Lee, and the children were the derivatives of that
original entry category.
Subsequently, Ms. Lee, the lead Respondent, applied for
adjustment before the DHS/CIS based on a labor petition that had
been filed as a skilled worker, a dental technician.
That application for Adjustment of Status is the relief
A 89 047 352, et al 2 September 12, 2011
PW *M
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\
(
before the Court today.
It is important to note that Ms. Lee's husband, Mr.
Kim's original status as a non immigrant E-2 investor has expired
and the DHS/CIS has not extended or renewed that status.
Therefore, Mr. Kim as well as the lead Respondent and the children
are no longer the beneficiaries or recipients of that original non
immigrant status which has now expired.
In the adjustment application filed by Ms. Lee, the
husband, Mr. Kim, and the children are the derivatives. They are
expecting to adjust their status as derivatives if Ms. Lee's
adjustment application is granted.
The CIS denied Ms. Lee's application for adjustment of
status and according to their letter of denial which is in the
record at Exibit 7, the reason for the denial was that Ms. Lee
had been employed as a dental technician from Septemer 2003 until
October 24, 2007 without having obtained employment authorization
from the DHS. Also in the letter of denial, Exhibit 7-A, it
indicated that Ms. Lee did obtain employment authorization for a
period of one year from October 24, 2007 until October 23, 2008
however, that period of authorized employment expired on October
23, 2008 and Ms. Lee continued to be employed as a dental
technician in the family business, Pro-Tech Dental Lab until the
date of the letter of denial which was September 4, 2009. In that
letter they expressed the reasons why they are denying the
Adjustment of Status based on that period of employment exceeding
A 89 047 352, et al 3 September 12, 2011
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180 days without having received employment authorization.
The lead Respondent requested reconsideration or
reopening of that decision and that request was denied by the
DHS/CIS on Decemer 15, 2009. That is part of the record as
Exhibit #2.
The parties agree that the issues appear to be legal and
not factual. The lead Respondent is arguing that the statute
appears to mandate that dependents of the E category be provided
authorization for employment in the United States. The Respondent
points out Section 214 (e) (6) of the Act which states:
In the case of an alien spouse admitted under Section
lOl{a) (15) {E) . . . who is accompanying or following to
join a principal alien admitted under such section,
the Attorney General shall authorize the alien spouse
to engage in employment in the United States and
provide this spouse with an "employment authorized"
endorsement or other appropriate work permit.
The lead Respondent argues that the regulations, which
do appear to require that the spouse of an E category, a non
imigrant, apply for employment authorization, are inconsistent
with the statute and lead Respondent requesthat the Court
disregard those regulations and conclude that the basis for the
denial of adjustment is not supported by the law.
The Respondent was given an opportunity to present the
Adjustment of Status application to the Court and as indicated in
A 89 047 352, et al 4 September 12, 2011
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Exhibit 5, at the Master Calendar of our pretrial hearing on May
11, 2010, the Respondent was provided until October 18, 2010 to
submit the application and all supporting documents.
The Respondent, however, did not submit the application
Svb r1
fee
by the deadline and instead . 'P t part of the application
today. The Respondent's counsel blames prior counsel, saying he
was not aware of what had happened and apologizes for not filing
it on the deadline. However, even today, the application was not
complete as there were still parts of the application packet that
were not presented. In addition, it appears that the lead
Respondent's category had retrogressed and the labor visa is no
longer current
)
ie fingerprints have expired and the Respondent
did not take them again. Therefore, technically speaking, the
Respondents were not able to put the Court in a position to
consider the adjustment application of the lead Respondent because
of these missing elements.
However, even assuming that they had complied with the
deadline set by the Court and had submitted the complete packet
for the adjustment, I don't believe that the Respondent's theory
is correct.
1
e
Although j does present an interesting argument in
light of the language of the statute, I don't believe the
regulations requiring that the Respondent at least submit to being
examined and evaluated by the CIS for employment authorization is
inconsistent with the statute. I say this because it is implied
A 89 047 352, et al 5 Septemer 12, 2011
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W
in the language of the status that the government should have a
way of determining if indeed the lead Respondent would fall under
this category of a dependent of one who has a viable and existing
non immigrant E-category visa in order to receive that employment
authorization. I note that the E-category itself has many
requirements with respect to the type of employment that the
principal recipient of the E-category must comply with in order to
maintain that E-category status. It seems contradictory that
given all these restrictions on the type of employment that the
principal recipient of the E non immigrant category has to be in
compliance with, that the spouse dependent on that category would
simply work without any type of monitoring or supervision by the
DHS/CIS under the theory that she doesn't need to even submit to
the process of applying for employment authorization because the
statute mandates that she be authorized to be employed. I don't
think that the regulations requiring that she at least submit an
application for consideration by the DHS/CIS is inconsistent with
that language. Otherwise, reading it in the manner that the
Respondent wants it to be read, it would give the dependent spouse
of a recipient of the E non immigrant category a wider scope in
being employed in whatever capacity the dependent spouse wishes to
without any type of supervision by the government.
Therefore I think that the reasons stated by the DHS in
'denying the Adjustment of Status of the lead Respondent are valid
and I believe that unless the regulations are directly and clearly
A 89 047 352, et al 6 September 12, 2011
M .W. ..
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inconsistent with the statute, I have to follow the regulations as
this administrative tribunal is also a part of the executive
branch of the government. As indicated previously, I do not see
an inconsistency with the agency having the ability by requiring
that the Respondent apply for employment authorization to be able
to monitor if indeed she falls at that particular time within the
confines of the statute. In other words, I do not think that
requiring that she submit to the application and evaluation by DHS
is inconsistent with the mandate of Section 214 (e) (6) of the Act.
NY
J
The Respondent has not presented

other argument to allow

her to exempt herself from applying for the employment
authorization as required by the regulations and her argument that
she was none the less part owner of the business based on
California Community Property Law has not been developed factually
to enable the Court to find that this is an exception. No
authority has been provided either for such an exception to the
requirement in the regulation that she at least file an
application for employment authorization. She does admit that she
was employed as a dental technician for a salary of $2000 a month,
approximately, by Pro-Tech Dental Labs here in the United States
and that she did work for more than 180 days without receiving
employment authorization from the DHS/CIS.
Therefore the lead Respondent's application for
Adjustment of Status based on Section 245 of the Act is denied,
even assuming that it had been properly filed.
A 89 047 352, et al 7 September 12, 2011
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Alternatively, the application for Adj ustment of Status
is denied assuming that Respondent's would be eligible as it was
not filed complete and the category is not current.
The Respondents have applied also for the relief of
voluntary departure at conclusion of proceedings. They appear to
be eligible for that relief and there appears to be no opposition
to that relief, therefore the Court will grant voluntary departure
to each Respondent for a period of 60 days, which is the maximum
time, which if counted from today would expire on November 14,
2011. If any of the Respondents does not leave by the time
allowed, the voluntary departure order will be automatically
changed into an Order of Removal based on the respective charge in
the charging document. Furthermore, the voluntary departure is
conditioned upon the posting of a voluntary departure bond for
each Respondent in the amount of $500 for each Respondent. Each
Respondent shall post the $500 voluntary departure bond within
five business days of today's date. Five business days if counted
from today would be September 19, 2011.
If the Respondents do not comply with the conditions of
the voluntary departure granted today, the Respondents, in
addition to having Order of Removals, will suffer the consequences
that are explained in the written advisals that will be provided
to the Respondents at the conclusion of these proceedings which
are incorporated by reference to this decision.
For all of the above mentioned reasons, the Court issues
A 89 047 352, et al 8 September 12; 2011
MM %: P% % - - W W
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the following orders.
ORDERS
All Respondents are found to be removable as charged.
Lead Respondent Do Kyung Lee's application for
Adjustment of Status is hereby denied. The application for
adj ustment is therefore denied for all the three derivative
Respondents.
The applications for voluntary departure at conclusion
of proceedings filed by all Respondents are hereby granted subj ect
to all the conditions as discussed previously as well as all the
( 5v l 1 CN
terms and conditions in the statute and the :lations and the
t11f k
accompanying advisals that . provided at the conclusion of this
decision. So ordered.
IGNACIO P. FERAEZ
Immigration Judge
A 89 047 352, et al 9 September 12, 2011
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(-
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
IGNACIO P. FERNADEZ, in the matter of:
DO KG LEE
A 89 047 352
HYU KOO KIM
A 89 047 353
GIN WA KIM
A 89 047 354
NA YOUG KIM
A 89 047 355
San Diego, California
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Immigration Review.
lam/jma
Lisa M. Murr, Transcriber
YORK STENOGRAPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717) 854-0077
-October 26, 2011
Completion Date
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