fact as well as in law for it to support adjustment of status pursuant to section 245, so must it exist to support recordation of lawful admission for permanent residence pursuant to section 214(d). We are aware that adjustment has been granted under section 214(d) despite the lack of a viable marriage. Matter of Blair, 14 I. & N. Dec. 153, (R. C. 1972) (applicant was widowed the day after her marriage but continued living with her deceased husband's parents); Matter of Hays, 14 I. & N. Dec. 188 (D.D., R.C. 1972) (applicant and petitioner separated with little hope of reconciliation). We are not bound by decisions of the Regional Commissioner, Matter of Udagawa, 14 I. & N. Dec. 578 (BIA 1974), and we disagree with his interpretation and application of section 214(d). In addition, we agree with the immigration judge that adjustment of status may not be granted to the respondent under section 245 based on nonpreference status because the respondent does not have a valid labor certification. Moreover, because the respondent's second husband has withdrawn his visa petition in her behalf, the respondent is not eligible for adjustment of status under section 245 as the spouse of a United States citizen. For the foregoing reasons, we shall affirm the order of the immigration judge. ORDER: The appeal is dismissed and the order of the immigration judge is affirmed. Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 61 days from the date of this decision, or within such additional time as may be granted by the district director. In the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order. BEFORE THE BOARD On August 15, 1974, we dismissed the respondent's appeal from the immigration judge's order, denied recordation of the lawful admission for permanent residence of the respondent pursuant to section 214(d) of the Immigration and Nationality Act, and denied adjustment of status pursuant to section 245 of the Act. The Immigration and Naturalization Service has filed a motion for reconsideration of our denial of section 214(d) recordation. The motion will be denied. After careful consideration of the contentions of the Service, we adhere to the interpretation of section 214(d) which we expressed in our decision of August 15, 1974. ORDER: The Service motion is denied. Theodore P. Jakaboski, Alternate Board Member, dissenting: I respectfully dissent. The clear position of the Immigration and Naturalization Service, set forth in its motion for reconsideration of the Board's order of August 15, 1974, indicating that the Board's interpretation is inconsistent with both legislative history and Service practice, should have been afforded greater weight. The Service motion for reconsideration should have been granted and this Board should have receded from its earlier decision in this case. This Board, in its order of August 15, 1974, upheld the decision of an immigration judge denying recordation of the respondent's entry pursuant to section 214(d) of the Immigration and Nationality Act and denying adjustment of status under section 245 of the Act. The Board equated section 214(d) recordation of lawful entry with adjustment of status under section 245, and held that there must be a viable existing marriage at the time application for relief is made under section 214(d) the same as is required under section 245. This Board specifically rejected two decisions of regional commissioners of the Service which took a contrary position, namely Matter of Blair, 14 I. & N. Dec. 153 (R.C. 1972) and Matter of Hayes, 14 I. & N. Dec. 188 (R.C. 1972). As the Service's General Counsel stated in the motion, section 214(d) of the Immigration and Nationality Act provides, in part, as follows: "In the event the marriage between the said alien and the petitioner shall occur within three months after the entry and they are found otherwise admissible, the Attorney General shall record the lawful admission for permanent residence of the alien and minor children as of the date of payment of the required visa fee." (emphasis added) The service took the position that this language is mandatory and that the Attorney General must record the lawful admission for permanent residence once the statutory conditions have been fulfilled. According to the General Counsel, the Service has always treated the adjudication of an application filed pursuant to section 214(d) as nothing more than a ministeral act which is required by the statute. He said all that is normally necessary for approval is the receipt of satisfactory evidence that a lawful marriage had been entered into between the alien and the U.S. citizen petitioner within three months after the alien's entry. According to the General Counsel, this conclusion is supported by the legislative history of section 214(d) which shows that it was enacted to avoid long waits for visa issuance by finance(e)s of U.S. citizens and to obviate the need for the latter to proceed abroad to marry the former. In its motion for reconsideration the Service also said: "It is interesting to consider that had the U.S. citizen in the instant case proceeded abroad and married the respondent an 'immediate relative' immigrant visa would have been issued promptly upon approval of the I-130 petition and the respondent would have been able to proceed to the United States immediately and would have been admitted for lawful permanent residence. The subsequent separation and dissolution of the marriage would have had no effect whatsoever on the respondent's status unless a determination was made pursuant to section 241(c) that the visa had been obtained fraudulently." It was noted that the question of fraud is not involved here. Section 214(d) also provides that the fiancee of a U.S. citizen shall not be issued a visa until the Consular officer has received a petition filed by the U.S. citizen which petition must be approved by the Attorney General. The section provides such a petition shall be approved: “... only after satisfactory evidence is submitted by the petitioner to establish that the parties have a bona fide intention to marry and are legally able and actually willing to conclude a valid marriage in the United States within a period of 90 days after the alien's arrival." It can thus be seen that no Consular officer will or can issue a fiancee visa until he has received the approval of the Attorney General. The Service, acting on behalf of the Attorney General, has the opportunity to determine and pass on the bona fides of the marital intent before a visa is even issued. Once the Service is satisfied as to the good faith of the parties, the visa is issued, and the marriage is subsequently performed within the time limit it is not only difficult, but also impossible, to conceive how section 214(d) can be interpreted as permitting the Attorney General to deny the alien's application for permanent residence, even though the original bona fide marriage has deteriorated to the point of dissolution. The legislative history of section 245 and the method of processing section 245 applications is radically different from that involving section 214(d). Under the latter section the alien has already satisfied a Consular officer, at the time of visa issuance, and an Immigration officer, at the time of admission, that such alien is admissible as an immigrant. As opposed to this a section 245 applicant has had no previous adjudication of his admissibility for permanent residence and the entire processing of his application by the Service is therefore much more extensive and complex. The Service urges that the position taken in Matter of Blair and Matter of Hayes, supra, is the correct interpretation of section 214(d). I agree. In those cases the Service took the position that once the alien had passed the initial investigation, received a visa, entered the United States and entered into the planned marriage the statute required the recording of the alien's lawful admission for permanent residence. The Service is of the opinion that the specific discretionary power contained in section 245 permits the standard of a viable marriage to be applied in cases under that section. We must assume that Congress deliberately left that same power out of section 214(d). Therefore, because of the distinct difference between the wording and intent of section 214(d) and section 245 the Service submits that it is not proper to judge a marriage under either statute by the same standard. Accordingly, the order of August 15, 1974, should be withdrawn and an order entered that the respondent's application for section 214(d) relief be granted. Maurice A. Roberts, Chairman, dissenting: I concur in the foregoing dissenting opinion. MATTER OF LEHDER In Bond Proceedings Pursuant To 8 CFR 242.2(b) A-13924441 Decided by Board February 7, 1975 While the respondent was confined in a federal correctional institution the Service served a notice of detainer asking the institution to notify the Service prior to the respondent's release. At a deportation hearing at the institution the respondent was found deportable. The order of deportation was to take effect only upon his release to the Service by the custodial authority. Respondent did not appeal the deportation order and remains in custody for his criminal convictions, which are not related to any immigration process. The respondent alleges that because of the Service detainer he is restricted in his ability to participate in prison programs. His request to the Service for the setting of bail was denied by the district director as premature. In dismissing the respondent's appeal from the district director's decision the Board of Immigration Appeals cited: section 242(h) of the Immigration and Nationality Act which provides that an alien shall not be deported until his imprisonment has been terminated by his release from confinement; section 242(c), of the Act, which provides that an order of deportation entered against an alien in legal confinement, other than under immigration process, is effected at the moment he is released from such confinement; and 8 CFR 242.3(b) which provides that such alien shall not be accepted into physical custody until an order of deportation has been made and the Service is ready to deport the alien. ON BEHALF OF RESPONDENT: Micheal J. Churgin, Esquire 127 Wall Street New Haven, Connecticut 06520 ON BEHALF OF SERVICE: Irving A. Appleman, Esquire The respondent is currently confined in the Federal Correctional Institution at Danbury, Connecticut serving concurrent two- and fouryear sentences imposed by the United States District Courts for the Southern District of Florida and the District of Connecticut, respectively. On February 21, 1974 the Immigration and Naturalization Service issued an order to show cause and a warrant of arrest in deportation proceedings, and a Notice of Action by the Immigration and Naturalization Service in which the United States Marshal in Miami, Florida was asked to notify the Service 30 days prior to the respondent's release and to accept the notice as a detainer. After a proceeding which was held at the Federal Correctional Institution at Danbury, the respondent was |