Case Information
MATTER OF ONAL In Section 246 Proceedings A-20058053
Decided by Board October 15, 1981 Decided by Board November 22, 1988
(1) Where alien respondent's labor certification was invalidated by the Department of Labor under the applicable federal regulations, rescission of the respondent's adjustment of status as a nonpreference immigrant— which was based upon the validity ofthat labor certification— is mandated by section 246 of the Immigration and Nationality Act, 8 U.S.C. 1256. (2) Where the Immigration and Naturalization Service instituted rescission proceedings against the respondent within the statutory 5 year period after his adjustment of status occurred, the subsequent delay in holding the rescission hearing was not shown to be unreasonable or prejudicial, nor is it the type of delay against which the doctrine of estoppel by laches will protect. ON BEHALF OF' RESPONDENT: Aaron I. Maltin, Esquire Cohen & Tucker 1501 Broadway New York, New York 10036 By: Milhollan, Chairman; Maniatis, Maguire, Morris, and Yucca, Board Members
BEFORE THE BOARD (October 15, 1981) This matter is before the Board on appeal from the immigration judge's
decision of January 22, 1981, rescinding the respondent's adjustment of status to that of an alien lawfully admitted for permanent residence pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. 1256. The appeal will be dismissed_ The respondent is a 44-year-old native and citizen of Turkey who entered the United States in May 1972, as a nonimmigrant visitor. On February 16, 1973, a labor certification was issued on his behalf as a foreign food specialty cook. Based upon this approved labor certification, the respondent's status was adjusted to that of an alien lawfully admit- ted for permanent residence into the United States under section 245 of the Act, 8 U.S.C. 1255, on 06tober 24, 1973, as a nonpreference immigrant. However, in a letter dated March 5, 1974, the United States Department of Labor informed the District Director that the respon- dent had not been eligible to receive the labor certification at the time it was issued and therefore, the labor certification was "declared to be invalid" pursuant to federal regulations (then in effect) at 29 C.F.R. 60.5(g).' Thereafter, on May 23, 1977, the District Director served the respondent with a "Notice of Intent to Rescind" his adjustment of status, in compliance with 8 C.F.R. 246.1, stating that the Department of Labor had invalidated his labor certification.' The respondent filed a timely answer contesting the allegations contained in the "Notice," whereupon, under 8 C.F.R. 246.3, a rescission hearing subsequently held with the immigration judge concluding that the respondent's adjustment of status to permanent resident shoilir. be rescinded. On appeal, the respondent argue "The fact that [my] labor certifica- tion was withdrawn [revoked] by the Labor Department on March 5, 1974, has no effect on the proceedings. [I] was granted permanent resi- dence in the United States on October 24, 1973. The efficacy of that document was ended when [I) was granted permanent residence based thereon." This argument is unpersuasive. First, it ignores the fact that the Department of Labor invalidated the labor certification because the respondent was not eligible therefor at the time it was originally issued, which indicates that the labor certification was invalid ab initio, and so of no effect at any time. Moreover, section 246 of the Act specifically contemplates a reexamination of the facts and circumstances existing at the time of the alien's adjustment of status in order to determine whether that adjustment was properly accorded. Thus, whether the Department of Labor's action is viewed as an actual nunc pro tune invalidation of the labor certification or, instead, as an authorized and expert determina- tion that the respondent was not in fact qualified and eligible to receive the labor certification, the result is the same; the respondent did not qualify for a valid labor certification, and, consequently, the entire basis upon which he obtained his adjustment of status simply did not exist. 29 C.F.R. ti41.6%) stated as follows: Certifications issued pursuant to this part are invalid if the representations upon which
they are based are materially incorrect. Materially incorrect, for the purposes of this paragraph, means that if the correct facts had been known a certification could not have been issued pursuant to the requirementinet forth at section 212(a)(14) of the Immigra- tion and Nationality Act. was employed not as a specialty cook but only as a dishwasher and at a salary far below that specified by the approved labor certification. The investigation also found that the restaurant did not even offer a menu which properly could be termed of a "foreign food specialty" type. Our decision here is based solely upon the Department of Labor's invalida- tion of the labor certification and therefore we need not address this finding nor the respondent's hearsay objections fsee Matter of DeVera, IS i&N nee 596 (MA 1977)) to inclusion in the record of the report of that investigation. [2] This "Notice" also stated that a Service investigation had determined the respondent
Section 246 of the Act states, in part, "If, at any time within five
years after the status of
a
person has been otherwise adjusted under the
provisions of section [245 of the Act]. . . to that of an alien lawfully
admitted for permanent residence, it shall appear to the satisfaction of
the Attorney General that the person was not
in
fact eligible
for such
adjustment of status, the Attorney General shall rescind the action
taken granting an adjustment of status to such person. . . ." (Einphasis
supplied.) Moreover, 8 C.F.R. 245.1(e) recites that, "An applicant who
is a nonpreference alien seeking adjustment of status for the purpose of
engaging in gainful employment in the United States, . . . is
ineligible
for the benefits of section 245 of the Act
unless
an individual labor
certification is issued by the Secretary of Labor . . . ." (Emphasis
supplied.) It is clear that inasmuch as a valid labor certification is a
necessary prerequisite for the adjustment of status of this nonpreference
alien, and his labor certification was invalid because he not qualified
therefore, he "was not in fact eligible" for adjustment of status.
Therefore, rescission of that adjustment of status is mandated by sec-
tion 246 of the Act.3
Finally, the respondent contends that because of the delay in holding
the hearing only some 3 years after service of the "Notice of Intent to
Rescind," rescission should be precluded under the doctrine of estoppel
by laches.
Estoppel by !aches is
an affirmative defense in which the
party must establish that he changed his position to his detriment and
prejudice through reliance upon the unreasonable delay in instituting
actions against
him. See Akers v_ State Marine Lines, Inc.,
BEFORE THE BOARD (November 22, 1983) The Immigration and Naturalization Service moves this Board to reconsider our decision of October 15, 1981, wherein we dismissed the respondent's appeal from a decision of an immigration judge rescinding his adjustment of status pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. 1256. The Service motion requests that the Board "withdraw from its position that the Department of Labor was authorized to, and did in fact find, that the respondent was unqualified for the position [of foreign food specialty cook]." Our previous decision in this case did not in fact include such a holding. However, the motion to reconsider will be granted for the limited purpose of clarifying our prior order- Our decision of October 15, 1981, referenced the Department of Labor's action (under long since superseded regulations) invalidating the respondent's labor certification upon which he had obtained his adjust- ment of status. Therein, we stated that "the Department of Labor invali- dated the labor certification because the respondent was not eligible therefore at the time it was issued." We similarly referred to the Depart- ment of Labor's "determination that the respondent was not in fact qualified and eligible to receive the labor certification." The word "qualified" was used merely as a synonymous adjunct to the word "eligible," and then only with reference to the overall issuance of the labor certification. This language was not intended to suggest that the invalidation based on an assessment by the Department of Labor of the alien's particular qualifications to adequately perform the duties of a specialty cook. In fact, as the decision of the Department of Labor was not specific as to its reasons, our decision was equally vague as to that Department's rationale for invalidating the petition.' The Department of Labor considers several factors in determining whether or not to issue a labor certification under the provisions of section 212(a)(14) of the Act, 8 U.S.C.
It was not our intent to suggest in our prior decision . either that the Department of Labor had authority to find an alien unqualified to per- form a particular job or that such a determination had occurred in the case before us. Accordingly, the motion to reconsider is granted for the limited purpose of clarifying this aspect of our decision of October 15, 1981. ORDER The motion to reconsider is granted. FURTHER ORDER: The decision of October 15, 1981, is reaf- firmed as clarified above.
1182(a)(14). See 20 C.F.R. 656.24(b); 29 C.F.R. 60.6 (1974). Whether an alien qualifies for
the job in question, however, is not a determination expressly allocated to the Depart-
ment of Labor. See
Madany v. Smith,