Philippines. The husband alone has appealed from that decision in submitting his Notice of Appeal (Form I- 290A), dated March 26, 1975, through previous counsel. Inasmuch as the Service and new counsel treat the appeal as though the wife had appealed also, we will take jurisdiction of her case on certification in accordance with 8 C.F.R. 3.1(c). The respondents, natives and citizens of the Republic of the Philippines, were admitted to the United States on July 10, 1972, and August 5, 1972, respectively. Under Section 101(a)(15)(H)(i), they were authorized employment at St. John's Hospital, Detroit, Michigan, until May 17, 1975, and May 4, 1975, respectively. In violation of their authorized employment, the respondents accepted employment at the David Brotman Memorial Hospital in Culver City, California, on November 18, 1974, and December 2, 1974, respectively. They commenced such employment prior to the approval of visa petitions submitted by the David Brotman Memorial Hospital on their behalf. The visa petitions were approved on January 24, 1975, for their new employment and they were authorized to remain until January 23, 1976 (counsel's brief p. 1). At the hearing the respondents admitted the allegations contained in the Order to Show Cause, however, they denied deportability (Tr. p. 3). Section 101(a)(15)(H)(i), pertains to an alien having a residence in a foreign country, which he has no intention of abandoning, who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability. The employment of nonimmigrants, including temporary workers, is also governed by regulations. The pertinent portion of 8 C.F. R. 214.1(c) states: A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(9) of the Act. Additionally, 8 C.F.R. 214.2(h)(1) provides: If an alien in the United States desires to perform temporary services for another petitioner, a new petition on Form I-129B must be submitted, and if the petition is approved, an extension of stay may be granted. . . . The respondents were authorized employment at St. John's Hospital, Detroit, Michigan. Initially they were not authorized employment at David Brotman Memorial Hospital in Culver City, California; authorization was not obtained until some 10 weeks after employment commenced. The Service, however, in its motion for termination, dated May 19, 1977, requests that these deportation proceedings be terminated inasmuch as they were improvidently begun. It is the Service position that a visa petition filed on Form I-129B in behalf of an alien or aliens already in the United States in the nonimmigrant classification defined in Section 101(a)(15)(H), may be adjudicated only as an application for extension of stay either to continue the same employment or training or to undertake employment or training different from that previously authorized. The approval of Forms I-129B in these cases on January 24, 1975, had the effect of extending the stay of the respondents and of inferentially affirming the continuing legality of their nonimmigrant status. The Service contends the Orders to Show Cause should not have been issued. On the basis of the foregoing we will grant the Service Motion for Termination. Matter of Vizcarra-Delgadillo, 13 I. & N. Dec. 51 (BIA 1968). Accordingly, the proceedings will be terminated. ORDER: The deportation proceedings against the respondents are terminated. MATTER OF CHARLES In Deportation Proceedings A-20186182 Decided by Board June 9, 1977 (1) The record submitted to the Board in this proceeding was deficient in several respects. Respondent's marital status and whether or not respondent and his counsel were present at hearing could not be verified from the record. Respondent's passport was missing from the record. Whether counsel for respondent had received a copy of the hearing transcript as requested could not be determined. (2) The immigration judge has primary responsibility to insure that the record submitted to the Board is orderly, complete and accurate. See Matter of Gibson, Interim Decision 2541 (BIA 1976). Where, as here, the record suffers various deficiencies it will be remanded to the immigration judge for further proceedings. (3) 8 C.F.R. 242.19(b) contemplates that an oral decision will be rendered only when the respondent or his attorney is present. From this record, it could not be determined whether either was present, but it did appear that both were absent because they did not answer to their names. Under the circumstances, the decision of the immigration judge should have been reduced to writing and served on them. CHARGE: Order: Act of 1952-Section 241(a)(2) (8 U.S.C. 1251(a)(2)-Nonimmigrant visitorremained longer' ON BEHALF OF RESPONDENT: Michael I. Rose, Esquire Suite 330-Roberts Building 28 West Flagler Street The respondent appeals from an immigration judge's decision dated February 1, 1977. In his decision the immigration judge found the respondent deportable as charged, denied his application for withholding of deportation pursuant to section 243(h) of the Immigration and Nationality Act and denied him the privilege of voluntary departure. The record will be remanded for further proceedings. The respondent is a native and citizen of Haiti. He entered the United States as a visitor for pleasure. He has remained beyond his authorized period of stay. The record before us suffers various deficiencies. In light of these deficiencies, we have determined that the record should be remanded for further proceedings. The immigration judge in his decision mentions that the respondent is a married person. We have been unable to determine from the record the marital status of the respondent. The respondent's passport was apparently made part of the record. The passport is not in the record. We have an envelope in the record where the passport is supposed to be but the same is empty. No explanation has been offered for its absence. In the transcript of the February 1, 1977, hearing the following statements appear: IMMIGRATION JUDGE TO RESPONDENT: Q Will Mr. Victor Charles please answer? IMMIGRATION JUDGE: Q Let the record show that Mr. Charles does not answer. IMMIGRATION JUDGE TO COUNSEL: Q Mr. Michael Rose, will you please step forward? IMMIGRATION JUDGE: Q Let the record show that Mr. Michael Rose is also not present. . . These statements lend themselves to different interpretations. One of the interpretations is that the respondent and his counsel were not present at the hearing. The other interpretation is that the respondent was present but did not answer and that his attorney was not present. Where notice in accordance with the regulations has been given to a respondent and his counsel of a continued hearing and they do not appear, the proper procedure is to state for the record that proper notice was given to them of the continued hearing, note the time of the hearing,' note that neither is present and that no communication was received from either before the hearing explaining the reasons for their intended absence. Counsel for the respondent requested that he be furnished a copy of the transcript so as to allow him to prepare a brief on appeal. We cannot determine from the record whether or not the Service has supplied counsel with a copy of the transcript of the hearing. The respondent claims that he was not furnished a copy of the immigration judge's decision. In the Service's memorandum of February 22, 1977, addressed to this Board, the following allegation is made: 'The primary responsibility rests upon the immigration judge to insure that the record that is forwarded to us is orderly, complete and accurate. Matter of Gibson, Interim Decision 2541 (BIA 1976). The record discloses that the respondent was notified that the hearing was continued to February 1, 1977, at 1:30 p.m. We cannot determine from the transcript the time the continued hearing was held. Counsel's allegations of error for failure to inform him or respondent of the court's oral decision is patently frivolous in light of their willful absentation from the Immigration Court on the date designated for the hearing. We cannot agree with the Service's position. 8 C.F.R. 242.19(b), in pertinent part, states as follows: "An oral decision shall be stated by the [immigration judge] in the presence of the respondent and the trial attorney, if any, at the conclusion of the hearing. . . ." (Emphasis supplied.) It would appear that the regulation contemplates an oral decision only when the alien or his attorney is present. In any event, in the circumstances of this case, we believe the oral decision should have been reduced to writing and served. Since a timely appeal was filed, and in view of our action in remanding, it would appear no prejudice resulted. For the above reasons, we shall remand the record to the immigration judge so that he may correct the deficiencies noted in the record and to allow the respondent one more opportunity to be heard on his applications for discretionary relief. ORDER: The record is remanded to the immigration judge for further proceedings and the entry of an appropriate decision. |