CHING
(2) Under
(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 sectiоn 245 relief. Respondent‘s failure to present prima facie evidence of eligibility on motion for reconsideration is sufficiеnt ground for denial of that motion by the Board.
On August 20, 1975, we dismissed the respondent‘s appeal from an order of the immigration judge (following а 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
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 nоnimmigrant (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 wаs 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 wаs 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 рapers, 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 аn 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 аpplication is approved.
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 оf 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 cоnclude 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.