LEUNG
(2) Under
(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
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
On December 11, 1972, a visa petition for sixth-preference immigrant classification as a “Chinese Specialty Cook” was submitted in the apрlicant‘s behalf by Moon Lee, Inc. The petition was supported by a labor certification issued pursuant to the provisions of
On Deсember 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of the Sun Sang Tea House was coerced into signing a statement which was untrue; however, the appeal was subsequently withdrawn by the petitioner‘s attorney.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 aрplicant 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
An application on Form I-485 was filed by the applicant on October 12, 1973. He is seeking adjustment of his status to that of а lawful permanent resident under the provisions of
Even though the applicant has established that he is statutorily eligible for the benefits sought, he also bears the burden tо establish that discretion should be executed in his behalf. Matter of Arai, 13 I. & N. Dec. 494, (1970). The applicable statute does not contemplate that all aliens who meet the required legal standards will be granted adjustmеnt of status to that of a permanent resident since the grant of an application for adjustment of status is a matter of discretion and of administrative grace, not mere eligibility. Matter of Ortiz-Prieto, 11 I. & N. Dec. 317, (1965).
The aрplicant was issued a labor certification as required by
The applicant claimed on May 20, 1976, in an affidavit executed beforе an immigration examiner in conjunction with the instant application that he worked part-time as a Chinese cook from January 1961 until December 1963 at the Sun Sang Tea House in Hong Kong. Such employment was not, however, listed by the petitioner or the applicant when the labor certification was obtained or when the visa petition was filed. After carefully considering the entire record in this case, it is
Section 212(a) of the Immigration and Nationality Act lists the classes of aliens who shall be ineligible to receive visas and shall be excluded from admission into the United States. Section 212(a)(14) provides for the exclusion of aliens “seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time оf application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliеns will not adversely affect the wages and working conditions of the workers in the United States similarly employed . . .” This section was incorporated into the Act by the Act of October 3, 1965, 79 Stat. 911, to safeguard the livelihood of workers lawfully present in the United States. H. Rep. 745, 89th Congress, 1st Sess. (1965).
The applicant has been in violation of the immigration laws of the United States since August 1971. His disobedience оf our laws commenced one year after he arrived in this country as a visitor for pleasure. The total work experience upon which his application is based was acquired while he was illegally in the United States—in violation of his status as a visitor for pleasure and thus not permitted to be employed. In the absence of unusual or outstanding equities, an alien will not as а matter of administrative discretion be accorded permanent resident status on the basis of a labor certification issued under
IT IS ORDERED that the application for status as a lawful permanent resident be and the same is hereby denied.