In providing a reasoned set of standards explicating when continuances for labor certifications are within the range of permissible decisions available to an Immigration Judge, and when they are not, the Board should take into account: (a) the intent of Congress in creating a mechanism for adjusting status based on labor certification and visa eligibility, as expressed in 8 U.S.C. § 1255(i), (b) the lengthy delays and uncertainties caused by the implementation of this mechanism, and (c) the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is still sub judice; (d) the effect, if any, of waiting for an application for an employment-based visa,as opposed to a labor certification, to be processed, and (e) the effect, if any, of an employment-based visa being denied after the agency has acted, but while the case is still pending.
Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that the Immigration Judge may grant a motion for continuance for good cause shown.
The Board examined factors that may be considered in determining whether to continue proceedings to afford the DHS’s United States Citizenship and Immigration Services (“USCIS”) the opportunity to adjudicate a Petition for Alien Relative (Form I-130), a family-based visa petition which, if approved, would render the respondent prima facie eligible for adjustment of status. The Board held that the Immigration Judge and the Board may consider a variety of factors in evaluating the propriety of a continuance, including but not limited to: (1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.
Matter of Hashmi, 24 I&N Dec. 785, 788 (BIA 2009), provides a framework to analyze whether good cause exists to continue proceedings to await adjudication by the USCIS or the DOL. In determining whether good cause exists for a continuance, the Immigration Judge should first determine the respondent’s place in the employment-based adjustment of status process and then consider and balance the Hashmi factors, if applicable, and any other relevant considerations. While all these factors may be relevant in a given case, the focus of the inquiry is the likelihood of success on the adjustment application.
In general, the adjustment of status process under sections 203(b)(1), (4), and (5) of the Act is similar to the two-stepfamily-based adjustment of status process described in Hashmi, while a three-step adjustment process underlies the employment-based classifications described at sections 203(b)(2) and (3) of the Act. First, an alien’s employer or prospective employer in the United States files a labor certification with the DOL on the alien’s behalf. The DOL approves a labor certification only if it is established that there are not sufficient United States workers “able, willing, qualified . . . and available” to perform the job and that the employment of the alien will not adversely affect similarly situated United States workers. Generally, before filing the labor certification, an employer is required to conduct a recruitment campaign to test the affected local labor market to determine whether there are minimally qualified United States workers for the position. Once the required recruitment process is complete, the employer files the labor certification declaring, inter alia, that the job opportunity has been and is clearly open to any United States worker and that United States workers who applied for the job opportunity were rejected for lawful job-related reasons. The labor certification is valid for 180 days from the date the DOL certifies the application. Second, if the labor certification is approved, the employer files a Form I-140 (Immigrant Petition for Alien Worker) with the USCIS pursuant to sections 203(b)(2) and (3) and 204(a)(1)(F) of the Act, 8 U.S.C. § 1154(a)(1)(F) (2006). The I-140 must be filed with the USCIS within the labor certification’s 180-day validity period. Along with the labor certification, the employer must provide evidence showing that at the time the labor certification was filed, the employer had the ability to pay the offered wage and the alien possessed the required education and experience for the job offered. If the USCIS approves the I-140, it also determines the alien’s preference classification under section 203(b)(2) or (3) of the Act, depending on the minimum job requirements for the certified job. Third, if the USCIS approves the I-140 and a visa is immediately available, the alien may apply for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006). Aliens in removal proceedings, other than certain arriving aliens, file their Application to Register Permanent Residence or Adjust Status (Form I-485) with the Immigration Judge. The burden is on the respondent to establish his adjustment eligibility. To establish eligibility for adjustment of status under section 245(a) of the Act, the respondent must demonstrate that he has been inspected and admitted or paroled into the United States; is eligible to receive an immigrant visa and the visa is immediately available; is not statutorily barred from adjustment; and is admissible to the United States within the meaning of section 212(a) of the Act, or, if inadmissible, is eligible for a waiver of inadmissibility. The respondent must also demonstrate that adjustment should be granted in the exercise of discretion. If an adjustment application is approved, the alien is accorded lawful permanent residence in the United States. At the time of adjustment of status, the alien must show the continued existence of an offer of employment, as set forth in the labor certification and I-140, and must demonstrate an intent to accept the offer of employment. An alien is not required to have been employed by the certified employer prior to adjustment of status; nor is an alien required to establish an intent to remain at the certified job indefinitely.
Many close family members of aliens who legalized under section 245A of the Act, 8 U.S.C. § 1255a (2006), were unable to adjust status in the United States pursuant to section 245(a) because they had not been inspected and admitted into this country, or they were barred under section 245(c) of the Act. Consequently, they had to leave the United States and apply for an immigrant visa abroad. This placed a significant burden on aliens who were required to travel abroad to apply for an immigrant visa and on the Department of State, which was responsible for processing the visa applications.
Congress responded by adding section 245(i) to the Act, which authorized aliens present in the United States without inspection and admission, or who were otherwise barred from adjustment under section 245(c), to adjust their status upon the payment of a surcharge, provided they met the other statutory and regulatory requirements for adjustment. As originally enacted, section 245(i) was scheduled to sunset after 3 years on October 1, 1997. Congress later enacted a grandfather clause, which allows certain aliens to continue to benefit from the provision.
For section 245(i) eligibility purposes, a grandfathered alien is the beneficiary (including certain family members if they are eligible to receive a visa under section 203(d) of the Act) of a visa petition or labor certification that was (1) filed on or before April 30, 2001, (2) properly filed, and (3) approvable when filed. See section 245(i)(1) of the Act; 8 C.F.R. § 1245.10(a) (2009). “Approvable when filed” means a visa petition or labor certification that was “properly filed, meritorious in fact, and non-frivolous.”
A labor certification is considered properly filed when it was “properly filed and accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.” An alien relying on a visa petition or labor certification filed after January 14, 1998, must also establish that he or she was physically present in the United States on December 21, 2000.
The fact that an alien is grandfathered for section 245(i) purposes does not entitle the alien to adjust status or to remain in the United States while seeking adjustment of status. To adjust status under section 245(i) of the Act, a grandfathered alien must also be eligible to receive an immigrant visa, be admissible to the United States, and demonstrate that an immigrant visa is immediately available. A grandfathered alien must also establish that adjustment is warranted in the exercise of discretion.
Whether an alien is seeking adjustment of status under section 245(a) or (i) of the Act, there may be lengthy delays and uncertainties resulting from the multi-step adjudication process. The underlying two-step process discussed in Hashmi for family-based petitions (which also relates to certain employment-based categories) and the three-step process for employment-based categories, which require labor certifications, must be followed, irrespective of whether an alien is applying for adjustment under section 245(a) or (i) of the Act. The only difference is that grandfathered aliens are exempt from both the inspection and admission requirement for adjustment at 245(a) and the statutory bars to adjustment set forth at section 245(c) of the Act. Because grandfathered aliens can adjust their status when other aliens would be precluded from adjusting, the Immigration Judges should specifically consider an alien’s eligibility for section 245(i) treatment when considering a motion to continue.
The Board has long held that the Immigration Judge may, in the exercise of discretion, grant a continuance pending the final adjudication of a visa petition. The Board now holds that an Immigration Judge should consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785, and any other relevant considerations when deciding whether to continue removal proceedings to await adjudication by the USCIS or the DOL. Immigration Judges should not rely upon their completion goals when determining whether good cause exists for a continuance.
As in Matter of Hashmi, the focus of the inquiry is the likelihood of success on the adjustment application. A respondent who has a prima facie approvable I-140 and adjustment application may not be able to show good cause for a continuance because visa availability is too remote. Nonetheless, the Immigration Judge must evaluate the individual facts and circumstances relevant to each case. The Immigration Judge needs some basis to examine the merits of the adjustment application. Therefore, the respondent may be required to submit evidence of his adjustment eligibility, including the adjustment
application, relevant supporting documentation, and USCIS fee receipts.
Several circuits, including the Second Circuit, have followed the Eleventh Circuit’s finding in Zafar v. U.S. Att’y Gen., 461 F.3d 1357, that an alien lacks good cause for a continuance based on a pending labor certification because without a prima facie approvable visa petition, eligibility for adjustment is too remote. These cases support the proposition that continuances should not ordinarily be granted based solely on a pending labor certification. We agree that the pendency of a labor certification generally would not be sufficient to grant a continuance in the absence of additional persuasive factors, such as the demonstrated likelihood of its imminent adjudication or DHS support for the motion. When further analysis is warranted because of such additional factors, the Immigration Judge should also consider any indications that the labor certification is not facially legitimate, i.e., that it does not appear to be an application made in good faith by the employer and the respondent. If needed, the respondent may submit evidence that the application has been filed with the DOL, that the employer is prepared to file the I-140 within the 180-day validity period, and that the offer of employment, as prescribed in the labor certification, remains available. Documentation establishing that the relevant DOL processing times are imminent may also be submitted.
In evaluating good cause for the continuance premised on a pending labor certification or I-140, all the factors relevant to the alien’s adjustment eligibility should be considered and articulated. Where applicable, the Immigration Judge should specifically acknowledge and consider the respondent’s status as a grandfathered alien for section 245(i) eligibility purposes.
Finally, the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is subject to judicial review, should be considered at the direction of the court.
To decide whether a continuance is warranted in this case, the Board employ the Hashmi analysis: first, determining the respondent’s place in the employment-based adjustment process; and, second, articulating, balancing, and explaining the Hashmi factors and any other relevant considerations.
The governing regulations at 8 C.F.R. § 1003.1(d)(3)(iv) provide that a party asserting that the Board cannot properly resolve an appeal without further fact-finding must file a motion for remand. The respondent’s submission of new evidence on appeal is not styled as such a motion. Nevertheless, the Board will determine whether a remand to consider the new evidence is appropriate in the exercise of our discretion. The requirements for a motion to remand are essentially the same as the requirements for a motion to reopen.
A remand is not warranted where the respondent’s labor certification, although once approved, is now invalid. The Board agrees that the approved but now expired labor certification application makes him a grandfathered alien who could potentially be eligible for section 245(i) treatment. However, the respondent does not currently have a pending labor certification. He has not yet begun the lengthy three-step process, starting with the filing of a labor certification. To adjust status, a grandfathered alien must also demonstrate that he is eligible to receive an immigrant visa, that he is admissible to the United States, and that an immigrant visa is immediately available. The respondent has not established prima facie eligibility for adjustment of status. Based on this new evidence the Board finds no reason to remand this case. The appeal is dismissed and the motion to remand is denied.
No comments:
Post a Comment