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(2) A labor certification issued on behalf of the Secretary of Labor does not operate to authorize one‘s employmеnt after January 1, 1977, and at the time of applying for adjustment of status within the meaning of section 245(c)(2) of the Act,
(3) An alien‘s employment is unauthorized when it has not been approved by the Immigration and Naturalization Service.
(4) Reinstatement of voluntary departure found warranted by Board in order to facilitate the respondent‘s return to this country as an immigrant where sixth-preference visa petition has been approved and a visa is awaiting the respondent abrоad.
The respondent has appealed from a May 16, 1977, decision of an immigration judge denying a motion to reopen deportation procеedings for the purpose of applying for adjustment of status under section 245 of the Immigration and Nationality Act,
The record further indicates that a labor certification application was filed by the LACC on the respondent‘s behalf in early 1976. This application was denied on June 14, 1976, and on June 23, 1976, the District Directоr denied an application for adjustment of status filed by the respondent. The respondent was subsequently found deportable at a hearing held on Octоber 14, 1976. He was granted voluntary departure until January 14, 1977, and this period was extended by the District Director through February 25, 1977. On January 24, 1977, a second application for a labor certification was filed by the LACC.1 This application was approved and a labor certification was issued on February 24, 1977. On March 1, 1977, the resрondent filed a motion to reopen deportation proceedings for the purpose of applying for adjustment of status. Also filed on the same date was an application for adjustment of status and a petition to classify the respondent for sixth-preference status, accompanied by the labor certification.
The motion to reopen was denied by the immigration judge for the reason that the respondent was precluded from аdjusting his status under section 245(c) of the Act,
(2) an alien (other than an immediate relative as defined in section 201(b)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status. . .
The respondent admits that he has continued his employment with the LACC as a chemical engineer beyond March 13, 1976, when the permission to work as an “on-the job trainee” granted by the Service expirеd. He contends, however, that approval of a labor certification
While sympathizing with the respondent‘s predicament, we disagree with his position that a labor сertification issued pursuant to section 212(a)(14) of the Act,
The proposition that an alien‘s employment is unаuthorized unless the Service has given specific approval has been affirmed in numerous administrative and Federal court decisions.2 See, e.g., Ahmed v. United States, 480 F.2d 531 (2 Cir. 1973) (maintenance of status and departure bond); Matter of Yarden, Interim Decision 2513 (R.C. 1976) (adjustment of status); Matter of Boroumand, 13 I. & N. Dec. 306 (BIA 1969) (deportatiоn). Although Congress did not define the term “unauthorized employment” when it enacted section 245(c), we do not believe that a labor certification, standing alone, would shield an applicant for adjustment of status from the operation of that section.
Had the respondent obtained permission from the Service to continue his employment after January 1, 1977, his case would be on a different footing. Pursuant to the Service‘s Operations Instruction 245.9, an applicant for adjustment may be granted permission to work during the time his application for status as a permanent resident is pending. However, there is no evidencе that the respondent‘s permission to work extended beyond March 13, 1976. Consequently, we must agree with the immigration judge that the respondent is statutorily precluded from adjusting his status due to his continuing in unauthorized employment after January 1, 1977, and at the time of applying for adjustment of status.
Counsel has notified the Board that the resрondent‘s sixth-preference visa petition has been approved and that a visa is awaiting him in India.
ORDER: The appeal is dismissed as to the denial of the motion to reopen for the purpose of applying for adjustment of status.
FURTHER ORDER: The outstanding order of deportation is withdrawn; the respondent is permitted to depart from the United States voluntarily within such time and under such conditions as the District Directоr shall direct; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge‘s order.