Pursuant to the agreement between employers of H-2 temporary workers and the Immigration and Naturalization Service, each worker temporarily admitted to the Virgin Islands or permitted to remain there temporarily is given a 60-day grace period within which to depart the United States or to obtain authorization for new employment after his previously certified employment has terminated. It appears to be the position of the Service that an H-2 worker who remains 60 days beyond the termination of employment without obtaining authorization for new employment is deportable as an overstay even though the period of stay granted the respondent at entry has not yet expired.

It is alleged in the order to show cause that on August 12, 1974 the respondent's employment was terminated and that the respondent remained more than 60 days beyond that date. On the basis of these allegations the respondent was charged with deportability as an overstay. At the hearing the respondent admitted that her employment had been terminated but disputed the exact date of the termination. It is conceded, however, that 60 days had passed since she had left her employment when the order to show cause was issued.

Once a nonimmigrant has been admitted for a fixed period, within that period his stay is not unlawful unless he violates one of the conditions of his admission. Matter of Siffre, 14 I. & N. Dec. 444 (BIA 1973). The date until which the alien is authorized to stay is not affected by the agreement entered into between the employer and the Immigration and Naturalization Service, of which the 60-day rule is a part.

Failure to keep authorized employment or to obtain new employment for which certification has been issued indicates that the alien is no longer pursuing the purpose for which he was admitted. A nonimmigrant temporary worker thereby becomes subject to deportation for failure to maintain status under section 241(a)(9) of the Act. Accord, Matter of Mehta, 14 I. & N. Dec. 451 (BIA 1973). Apparently the Service, through application of its 60-day rule, has determined that it will allow an H-2 worker 60 days in which to obtain new certification after his previously certified employment has terminated before it will consider the alien out of status. Although the 60 days had passed in this case, the order to show cause does not allege that the respondent failed to maintain status nor does it charge her with being deportable under section 241(a)(9) of the Act.

Although the immigration judge's decision was entered after the respondent's authorized stay in the United States expired on March 3, 1975, the order to show cause was issued on January 29, 1975, and is based upon the fact that the respondent failed to depart by October 11, 1974, not by March 3, 1975. An alien is entitled to know the ground upon which his deportation is being sought. Matter of Siffre, supra. We conclude, therefore, that the charge is not sustained.

If the respondent's stay is not extended by the district director, for the purposes of fair disposition of these proceedings, she should be given a reasonable period of time, to be fixed by the district director, within which to depart. If she does not so depart, she may become deportable for remaining longer than permitted, and a new order to show cause may then be issued.

ORDER: The appeal is sustained and the proceedings are terminated.

MATTER OF CHING

In Deportation Proceedings

A-20675532

Decided by Board August 17, 1976

(1) Under 8 CFR 245.1(d), and applicant for preference status such as respondent herein is not eligible for adjustment of status under section 245 of the Immigration and Nationality Act unless he is the beneficiary of a valid unexpired visa petition filed in accordance with 8 CFR 204 and approved to accord him such status. Burden is on respondent to prove to the satisfaction of the district director that he meets the requirements for approval of the visa petition. Where such petition has not been approved, respondent is statutorily ineligible for section 245 relief.

(2) Under 8 CFR 103.1(m)(2) and (n), determination of sixth-preference eligibility is vested solely within the jurisdiction of the district director and regional commissioner. 8 CFR 242.8 does not vest authority over such a question in the immigration judge, and 8 CFR 3.1(b)(5) specifically excepts appellate jurisdiction in such a question from the Board of Immigration Appeals.

(3) On motion for reconsideration, respondent must present prima facie evidence of eligibility for section 245 relief to the Board. Lack of approval of the sixth-preference visa petition renders the respondent ineligible for section 245 relief. Respondent's failure to present prima facie evidence of eligibility on motion for reconsideration is sufficient ground for denial of that motion by the Board.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitorremained longer.

ON BEHALF OF RESPONDENT:

Wallace Heitman, Esquire

1014 Mercantile Bank Bldg.

Dallas, Texas 75201

ON BEHALF OF SERVICE:

Daniel L. Kahn
Trial Attorney

On August 20, 1975, we dismissed the respondent's appeal from an order of the immigration judge (following a reopened hearing) denying respondent's application for adjustment of status under section 245 of the Immigration and Nationality Act; and sustained his appeal from an order of the immigration judge denying respondent's application for voluntary departure and ordering his deportation to the Republic of China. This case is now before us on a motion to reconsider our prior decision on the issue of adjustment of status. We note that counsel has

filed a Petition for Review with the United States Court of Appeals for the Fifth Circuit in this matter. On December 16, 1975, counsel filed a Motion to Abate in the United States Court of Appeals. That motion was granted by the Court of Appeals on December 29, 1975 pending our review of respondent's motion.

The respondent is a 58-year-old male alien, native and citizen of the Republic of China. He entered the United States at San Francisco, California as a nonimmigrant (business) visitor on June 10, 1973. The respondent was authorized to remain in the United States until August 9, 1973. He remained beyond that date. Deportability was established at respondent's first hearing by clear, convincing and unequivocal evidence.

At his reopened hearing, the respondent requested adjustment of status. The immigration judge found that respondent was statutorily ineligible for adjustment of status because he was unable to show that he had a valid labor certification. The immigration judge also denied adjustment of status in the exercise of his administrative discretion. On appeal, respondent submitted a new labor certification issued to him on January 27, 1975. That document indicated that the respondent has been employed by the Blue Hawaii Restaurant of Arlington, Texas as a Chinese specialty cook since July of 1973. We denied respondent's application for adjustment of status on the sole ground that a visa number for the Republic of China in the nonpreference category was not available to him as of the date of our decision.

In his motion papers, counsel informs us that a visa petition for a sixth preference was filed with the Service on respondent's behalf on November 5, 1973 (petition is currently pending before the Service); that respondent has a valid labor certification; that his priority date is December 17, 1974; and that as of December of 1975, visa numbers were available for the Republic of China in the sixth preference category. Counsel contends that the respondent is statutorily eligible for adjustment of status and requests that we ". . . advise the Service to consider said Visa Petition for 6th Preference in line with this Motion . . . ."

Section 245(a) of the Immigration and Nationality Act provides that: The status of an alien, other than an alien crewman, who was inspected and admitted or paroled in the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved.

8 CFR 245.1(d) provides that an applicant for preference status such as this respondent is not eligible for the benefits of section 245 of the Immigration and Nationality Act (8 U.S.C 1255) unless he is the ben

eficiary of a valid unexpired visa petition filed in accordance with 8 CFR 204 and approved to accord him such status. 8 CFR 103.1(m)(2) and (n) places the determination of whether or not an alien possesses the qualifications for sixth preference status solely within the jurisdiction of the appropriate district director and regional commissioner. 8 CFR 242.8 does not vest in the immigration judge authority over such a question; and 8 CFR 3.1(b)(5) specifically excepts appellate jurisdiction of such a question from this Board.

It is clear from the record that the respondent does not possess an approved visa petition for a sixth preference. Therefore, he is statutorily ineligible for adjustment of status under section 245 of the Act. Respondent's remedy lies with the district director. There is no merit to counsel's request that we advise the district director to consider respondent's visa petition in light of this motion. It is respondent's burden to prove to the satisfaction of the district director that he meets the requirements for approval of his visa petition for a sixth preference. Respondent has available to him the remedy of a motion for reconsideration should future events in connection with his visa petition render such action appropriate. See Matter of Ficalora, 11 I. & N. Dec. 592 (BIA 1966).

We conclude that the respondent has not presented prima facie evidence to establish that he is statutorily eligible for adjustment of status under section 245 of the Act. Accordingly, the motion to reconsider will be denied.

ORDER: The motion to reconsider is denied.