Immigration precedents

A lawful permanent resident petitioned for preference status for his cousin's son, whom he had raised under Tongan customary adoption; the district director denied the petition because the adoption created no legal status under Tongan law. The Board of Immigration Appeals reaffirmed Matter of Palelei, holding that the petitioner failed to show that Tongan customary adoption creates a government-recognized parent-child relationship carrying substantial legal rights and obligations, and declined to follow Mile v. District Director (D. Utah 1980) outside that court's jurisdiction.

Five Canadian oil-rig workers were petitioned as L-1 intracompany transferees; the Service denied the petitions, finding they lacked 'specialized knowledge' and that no qualifying U.S. branch or affiliate existed. The Commissioner held that ordinary skilled drilling work is not specialized knowledge, that the L category is not meant to remedy U.S. labor shortages, and that 'same employer' means the parent company, and denied the petitions.

A lawful permanent resident petitioned to classify two children born out of wedlock as his unmarried sons under section 203(a)(2), asserting that he had later executed a formal acknowledgment legitimating them under Louisiana law. The Board of Immigration Appeals held that, even assuming valid legitimation, it occurred only after the petitions were filed, so the beneficiaries were not his 'children' at the time of filing and the petitions could not be approved.

The petitioner, an H-1 nonimmigrant temporary worker, sought sixth-preference immigrant status for a beneficiary employed as a live-in domestic worker; the district director revoked the approval because the job offer was not permanent. The Commissioner upheld the revocation, holding that sixth preference requires a permanent employment offer and that an H-1 temporary worker is not competent to offer permanent employment to an alien beneficiary.

The petitioner, a U.S. corporation, sought sixth-preference classification for its vice-president/export director with blanket Schedule A, Group IV labor certification. The decision held that companies with a high degree of common ownership and management, directly or through a third entity, are 'affiliated' under section 101(a)(15)(L); an unsalaried appointed chairman is an employee in a managerial or executive position; a corporation is a separate legal entity that may employ and petition for its stockholders; and eligibility for nonpreference status does not preclude preference eligibility.

The Board found the Indian respondent eligible for the pre-1976 investor exemption from labor certification under 8 C.F.R. 212.8(b)(4), following Ninth Circuit precedent, based on his $10,000-plus motel investment and qualifying experience. Nevertheless, it denied adjustment of status as a matter of discretion because he had worked without authorization as a student and made false statements about that employment in three benefit applications, while granting voluntary departure.

The Board of Immigration Appeals held that a Turkish nonimmigrant student who overstayed was deportable and statutorily ineligible for voluntary departure because he could not establish good moral character. Section 101(f)(7) bars a good moral character finding where the person was confined as a result of conviction for an aggregate of 180 days or more, even if the confinement resulted from a probation violation rather than an original sentence of incarceration.

The Regional Commissioner held that an illegitimate child has only one parent, the natural mother, for purposes of the Immigration and Nationality Act, because the father's acknowledgment of paternity did not legitimate the child under Peruvian law. The District Director's denial was vacated and the visa petition approved, since the sole parent was unable to provide proper care and had irrevocably released the child in writing for emigration and adoption.

Aphrodite Investments, a London investment holding company owned by three brothers, formed Arizona subsidiaries to purchase and develop real estate for resale. The District Director and Regional Commissioner denied L-1 classification on the ground that the beneficiary was an entrepreneur and speculative investor rather than an employee of an international company; the Commissioner held that a corporation is a separate legal entity from its stockholders and that a stockholder may be employed by the corporation, and approved the petition.

A U.S. citizen filed a spousal visa petition for his New Zealand-born wife; the marriage was valid and entered into in good faith, but the parties later executed a formal written separation agreement. The Board of Immigration Appeals held that the petition was properly denied on the basis of that legal separation even though the marriage had not been dissolved by an absolute divorce decree, distinguishing Chan v. Bell and Matter of McKee.

The respondent, an Iranian national, obtained adjustment of status based on marriage to a U.S. citizen; the Service sought rescission, alleging the marriage was nonviable at the time of adjustment and that he misrepresented his living arrangements. The Board of Immigration Appeals held that, absent a fraudulent or sham marriage or legal dissolution, nonviability alone cannot support denial or rescission of adjustment, and the misrepresentation was not material, so the rescission proceedings were terminated.

The District Director denied a visa petition because the beneficiary was not in the legal custody of her legitimating father. The Board of Immigration Appeals reversed, presuming that a father who legitimated his child had legal custody equal to the mother's at the time of legitimation absent contrary evidence, thereby satisfying INA section 101(b)(1)(C).