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u:s. Department of Justice

Executive Office for Immigration Review
Falls Church, Vir.;inia 22041
Decision of the Board of Immigration Appea.ls
File:
In re:
- Atlanta, GA Date:
IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Christopher W. l t ~ Esquire
ON BEHALF OF DHS:
CHARGE:
Nicole F. Kelly
Assistant Chief Counsel
Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] ~
In the United States in violation oflaw
APPLICATION: Continuance; reopening
This case was previously before us when the respondent, a native and citizen of Pakistan, filed
a motion to reopen and remand proceedings to the Immigration Judge for consideration of the
respondent's application for adjustment of status based on an approved labor certification. On
February 8, 2005, we granted the respondent's motion and remanded the case to the Immigration
Judge. On March 9,2005, while the case waS pending on remand, the respondent's visa petition was
approved with a priority date ofOctober 30) 2002. The respondent's Third Preference priority date
became current in March 2005 and remained current through June 2005 (LI. at 1). The priority date
retrogressed, however, and was no longer current at the January 3, 2007, hearing before the
Immigration Judge. At this hearing, the respondent requested a continuance ofhis proceedings until
his priority date became current again.
In a June 7, 2007, decision, the Immigration Judge denied this request based, in part, on the
respondent's inaction from March through June 2005 when his priority date was current (1.1. at 2).
The Immigration Judge also granted the Department of Homeland Security's (DHS) Motion to
Pretermit the Respondent's Adjustment of Status Application. The respondent now appeals the
June 7, 2007~ decision. Further, while this appeal was pending, his priority date again became
CUqent and, on May 5, 2008, he filed a Motion to Remand for Adjustment of Status. We will
sustain the appeal and grant the Motion to Remand. The respondent's request for oral argument is
denied. See 8 C.P.R. 1003,1(e)(7).
An Inunigration Judge, in her discretion, may grant a motion for continuance for good cause
shown. See 8 C.F.R. 1003.29; Matter ojPerez-Andrade, 19 I&N Dec. 433, 434 (BrA 1987), In
determining whether an alien has demonstrated "good cause," an Immigration Judge has broad
discretionary authority. See Matter o!Sibrun, 18 I&N Dec, 354,356 (BIA 1983). Indeed, we have
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held that an Immigration Judge's decision denying a motion for continuance "will not be reversed
tmless the alien establishes that [the] denial caused him actual prejudice and harm and materially
af'fected the outcome of his case," Matter ofSibrun, supra, at 356-57.
In Matter of Ho, 15 I&N Dec. 692 (BrA 1976), we held, based on Operations Instruction
245.4(a)(6), that, ifa visa number was immediately available when an alien submitted an application
for adjustment of status, but it was no longer available when the application was processed, the case
should be held in abeyance until the number again became current. See Matter ofHo, supra, at 693,
694. In this case, the respondent's visa number was current when he filed his 1-485 on May 23,
2005, and was no longer current at the time oflhe January 3, 2007, hearing (IJ. at 1). Therefore,
based on Matter ofHo, the respondent contends thaI the Immigration Judge should have granted him
a continuance until his priority date became current.
The Immigration Judge distinguished Maller of Ho based on the fact that, in that case, the
govemment agreed that the proceedings should be conditionally terminated whereas in this case the
govenlinent has not agreed to an indefinite continuance. In Matter ofHo, however, the government
agreed lhat Operations Instruction 245.4(a)(6) should apply in deportation proceedings, The DHS
has presented no evidence that this policy is no longer valid or that it should not be applied in this
case. See also Merchant v. United States Arty Gen., 461 F.3d 1375,1377-79 (11th Cir. 2006) (if
alien has approved labor certification, and filed Forms 1-140 and 1-485, he is eligible for an
adjustment of status under section 245(i) of the Act and it is an abuse of discretion to deny his
request for a continuance pending his adjustment of status). Therefore, based on Marter ofHo, we
find that the Immigration Judge erred by denying the respondent's motion for a continuance.
Moreover, as stated, while this appeal was pending the respondem's visa number again became
current and the respondent filed a Motion to Remand. In light of this additional information, we
remand this case to the Immigration Judge to determine if the respondent is eligibie for adjustment
of status. See 8 C.F.R. 1003.2(c).
Finally, with regard to the Immigration Judge's decision granting the DHS's Motion to Pretennit
the respondent's application for adjustment of status, we note that an application for labor
certification was filed on the respondent's behalf on April 17,2001. Another application was also
filed by a different employer on October 30, 2002. See Exhs. A and B to Respondent's Motion to
Reconsider. In support of its Motion to Pretermil, the DHS attached a one-page fax from the
Georgia Department ofLabor (GOOL) dated January 9, 2007, indicating that the respondent's "case
was closed and returned to the attorney/employer on 2-10-2003 due to failure to respond to a 45-day
correction letter." See Attachment to the DHS's MOlion to Pretermit. Based on this fax, the DHS
argued that the respondent did not show that his initial labor certification was properly filed and
accepted and, thus, he was not eligible to be grandfathered pursuant to section 245(i) ofthe Act. See
DHS's Motion to Pretermit at 1,2 (must have had a visa petition filed before April 30, 2001); see
also 8 C.F.R 1245.1O(a)(I)(B) (labor certification must be approvable when filed).
The Immigration Judge agreed and fOWld that the respondent did not have a valid labor
certification because it was "not accepted by the [GDOL]" and granted the DHS's Motion to
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Pretermit (I.J. at 3). On appeal, the respondent argues that the "45-day letter" does not "rebut the
presumption of an 'approvable when filed' labor application." See Addendum to Notice of Appeal
at 2.'
To be grandfathered under section 245(i) of the Act, the respondent must be the beneficiary of
a qualifying labor certification application filed on or before April 30, 2001, the application must
have been "properly filed" and "approvable when filed," and the alien must have been present in the
United States on December 21,2000. See 8 C.F.R. 245.1 O(a)(1 )(B). To be "properly filed," the
application must have been "accepted pursuant to the regulations of the Secretary of Labor," See
8 C.F.R. 245.10(a)(2)(ii); see also 20 C.F.R. 656.17, 656.21; 8 C.F.R. 103.2(a). An
application for labor certification is approvable when filed ifit was (I) properly filed, (2) meritorious
in fact, and (3) not frivolous. See 8 C.F,R. 1245.IO(a)(3). This determination "will be made based
on the circumstances thai existed at the time the qualifying petition or application was filed." See
8 C.F.R. 1245.1O(a)(3); see, e,g., Matter of Riero, 24 I&N Dec. 267, 268-69 (BrA 2007)
(respondent has the burden to show that marriage was bona fide and, thus, the visa petition was
approvable when filed); Matter of Wang, 23 I&N Dec. 924, 933 (BrA 2006).
In this case, despite arguing that the respondent's labor oertification was not approvable when
filed based on the GDOL fax, the DHS did not attaoh a copy of the "45-day letter,"elaborate on its
contents, or explain why it should be interpreted to reach the conclusion that, at the time the
respondent filed his application for labor oertification, the application was not approvable or properly
filed. Based on the record evidenoe before us, we find insufficient evidence to decide whether or
not the respondent was grandfathered under section 245(i) or whether he is eligible for this form of
relief. See Mauer ojSH-, 23 I&N Dec. 462, 465 (BIA 2002) (given the Board's limited fact-finding
function, it is "increasingly important for the Immigration Judge to make clear and complete findings
offaot that are supported by the record and in compliance with controlling law."). Therefore, we
will remand this case to the Immigration Judge for additional fact finding on this issue,
On remand, we note that, to be grandfathered under section 245(i) of the Act, the respondent
bears the burden of showing that his April 17, 2001, labor certification was approvable when filed,
See, e,g.. Matter ofRiero, supra, at 268-69; Matter ofAhmad, 15 I &N. Dec. 81, 82-83 (BIA 1974);
see also 20 C.F.R. 656.30(d) ("after issuance, a labor certification is subject to invalidation by the
DHS or by a Consul ofthe Department ofState 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,").
For these reasons, we reverse the Immigration Judge's decision granting the DHS's Motion to
Pretermit and we remand the case for additional fact finding as to whether the respondent was
grandfathered under section 245(i). Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
I The respondent also raised this issue in his Motion for Reconsideration filed with the Immigration
Judge on June 15, 2007.
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ORDER: The motion to reopen is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this opinion.
FOR THE BOARD
Board Memb@r Roger A. Pauley respectfully dissents. The respondent failed to
meet his burden of proof to show that the application waa approvable when filed.
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