MATTER OF CINTRON In Visa Petition Proceedings A-20583637 Decided by Board September 3, 1976 The United States citizen petitioner submitted a letter to the District Director requesting that the visa petition filed to accord his spouse immediate relative classification be withdrawn. The letter request was acknowledged by the District Director, but he subsequently ordered the petition denied. In view of the petitioner's letter request that the petition be withdrawn, the denial by the District Director was erroneous, and it is the order of the Board that the record reflect that the petition was withdrawn by petitioner. ON BEHALF OF PETITIONER: Fried, Fragomen & Del Rey, P.C. 515 Madison Avenue The United States citizen petitioner filed a visa petition in behalf of the beneficiary as his spouse under section 201(b) of the Immigration and Nationality Act. He subsequently submitted a letter withdrawing the petition. In a decision dated October 9, 1975, the District Director acknowledged having received the letter withdrawing the petition but nevertheless ordered the petition be denied. The petitioner has appealed from the District Director's decision refusing to consider the petition withdrawn. The appeal will be sustained. Just as any United States citizen or lawful permanent resident may file a visa petition in behalf of an alien, so may he withdraw the petition before a decision has been rendered. The action of the District Director in refusing to consider the petition withdrawn was erroneous. Accordingly, we shall sustain the appeal and order the record to reflect that the petition has been withdrawn. ORDER: The appeal is sustained; the visa petition filed by the petitioner in behalf of the beneficiary has been withdrawn. MATTER OF CONCEPCION In Visa Petition Proceedings A-34106980 Decided by Board September 8, 1976 The provision of section 204(c) of the Immigration and Nationality Act which provides that a visa petition shall not be approved for a beneficiary who has previously been accorded a nonquota or preference status based on a marriage entered into to evade the immigration laws is not applicable to a beneficiary who had previously been accorded immediate relative status as the spouse of a United States citizen on the basis of a marriage which never took place but which in fact was a fiction based on falsified documents. Under the circumstances the beneficiary cannot be said to have entered into a marriage for the purpose of evading the immigration laws, notwithstanding the fact that the Service approved the prior immediate relative petition. ON BEHALF OF PETITIONER: Gerald L. McVey, Esquire Fallon, Hargreaves, Bixby & McVey 30 Hotaling Place San Francisco, California 94111 The lawful permanent resident petitioner applied for preference status for the beneficiary as his spouse under section 203(a)(2) of the Immigration and Nationality Act. In his decision of October 28, 1975, the Acting District Director denied the petition on the basis of section 204(c) of the Act. The petitioner and the beneficiary were married on May 9, 1975. The present petition was filed on June 3, 1975. The beneficiary had previously been accorded immediate relative status as the spouse of a United States citizen when a visa petition in her behalf was approved on September 21, 1972, and she entered the United States with an immigrant visa on October 30, 1972. It was determined subsequently, in deportation proceedings, that the marriage upon which the visa petition was based was a fiction and had never taken place, and the beneficiary was found deportable as an alien who was excludable at entry under section 212(a)(19) and section 212(a)(14). Section 204 (c) of the Immigration and Nationality Act reads, in pertinent part, as follows: [No petition shall be approved if the alien has previously been accorded a nonquota or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. (Emphasis supplied.) The beneficiary has previously been accorded immediate relative status as the spouse of a United States citizen. However, she was accorded that status on the basis of falsified documents. No marriage was entered into, and therefore it cannot be determined that she obtained immediate relative status on the basis of a marriage entered into for the purpose of evading the immigration laws. Although the beneficiary profited from the previous Service determination that a marriage existed in the same way as if she had entered into a sham marriage, still the fact is that the marriage did not exist and therefore section 204(c) does not apply to the facts of this case. Because the Acting District Director based his decision on section 204 (c), he does not appear to have considered or reached a decision as to whether the marriage between the petitioner and the beneficiary was entered into in good faith. Accordingly, we shall remand the record for further proceedings along these lines and so that the District Director may enter a new decision. ORDER: The appeal is sustained and the record is remanded to the District Director for further proceedings in accordance with the above opinion. MATTER OF LEUNG In Section 245 Proceedings A-20078143 Decided by District Director September 8, 1976 (1) Applicant entered the United States as a nonimmigrant visitor for pleasure on September 7, 1970, and was authorized to remain until May 3, 1971, but did not depart. In August 1971 he accepted employment as a Chinese specialty cook, and obtained a labor certification pursuant to section 212(a)(14) of the Immigration and Nationality Act based on experience gained in that employment. Subsequently, a sixth-preference visa petition was approved in his behalf pursuant to section 203(a)(6) of the Act. On October 12, 1973 the instant section 245 application was filed. (2) Under 8 C.F.R. 214.1(c), an alien temporary visitor for pleasure as defined in section 101(a)(15)(B) of the Act may not accept any employment. Applicant was thus in violation of United States immigration laws and the total work experience upon which the labor certification and adjustment application were based was obtained while applicant was in the United States unlawfully. (3) Even though the applicant is statutorily eligible, the grant of an application for adjustment of status is a matter of discretion and administrative grace, and the applicant has the burden to show that discretion should be exercised in his behalf. See Matter of Arai, 13 I. & N. Dec. 494; Matter of Ortiz-Prieto, 11 I. & N. Dec. 317. In the absence of unusual or outstanding equities, an application for adjustment of status under section 245 of the Act which is supported by a labor certification predicated upon employment experience gained while applicant was in the United States unlawfully will be denied as a matter of discretion. ON BEHALF OF APPLICANT: Austin T. Fragomen, Esquire 515 Madison Avenue The applicant, a 47-year-old married, native and citizen of China, was admitted to the United States as a nonimmigrant visitor for pleasure on September 7, 1970, with extensions of stay authorized through May 3, 1971. His wife, a native and citizen of China, resides with their three alien children in Hong Kong, B.C.C. He has remained in the United States since May 3, 1971, without authorization by this Service and accepted employment during August 1971 at the Dynasty Restaurant in Rego Park, New York, as a Chinese food cook. The Dynasty Restaurant was sold in April 1972 and its name was changed to Moon Lee Restaurant. The applicant worked at that restaurant until April 1973. Since that date he has been employed as a Chinese specialty cook by the Chi-Lin Food, Inc. On December 11, 1972, a visa petition for sixth-preference immigrant classification as a "Chinese Specialty Cook" was submitted in the applicant's behalf by Moon Lee, Inc. The petition was supported by a labor certification issued pursuant to the provisions of section 212(a)(14) of the Immigration and Nationality Act. The petitioner stated on the application for alien employment certification (Form MA 7-50B) that three years of experience was the minimum requirement for a worker to perform satisfactorily the duties the position offered. The petition was also supported by a Form MA 7-50A executed by the applicant reflecting employment as a Chinese cook from January 1, 1961, until December 1963 in the Sun Sang Tea House in Hong Kong, B.C.C.; from December 1970 until April 1972 at the Dynasty Restaurant in Rego Park, New York; and from April 1972 until August 16, 1972, by the Moon Lee, Inc., in Rego Park. As evidence in support of the petition, the petitioner submitted a "Statutory Declaration" dated August 30, 1972, executed by Law, Chi, the owner of the Sun Sang Tea House, stating that the applicant had been employed from January 1, 1961, to December 30, 1963, at that restaurant. On December 26, 1972, the Officer in Charge in Hong Kong, B.C.C., was requested to conduct an investigation to verify the applicant's claimed employment at the Sun Sang Tea House. On April 2, 1973, the Officer in Charge submitted his report indicating that the applicant had never been employed at the Sun Sang Tea House as a Chinese specialty cook and furnished an affidavit dated March 15, 1973, made by Law, Chi stating that the statutory declaration executed by him on August 30, 1972, in behalf of the applicant was fraudulent. The visa petition was denied on June 12, 1973, after the petitioner had been afforded an opportunity to review the record and submit evidence in support of the petition or in opposition to the adverse information furnished by the Officer in Charge in Hong Kong. An appeal to the Regional Commissioner from the District Director's decision denying the petition was filed on June 27, 1973, alleging that the owner of the Sun Sang Tea House was coerced into signing a statement which was untrue; however, the appeal was subsequently withdrawn by the petitioner's attorney. On October 12, 1973, a visa petition was filed in the applicant's behalf by Chin-Lin, Inc., seeking to accord the applicant sixth-preference immigrant classification. Such visa petition was supported by a labor certification issued on the basis of a job offer on Form MA 7-50B reflecting the minimum requirement for the position of Chinese food cook was at least one year of experience. A statement of qualifications on Form MA 7-50A was executed by the applicant on May 8, 1973. It was submitted |