Immigration precedents

A Hong Kong nonimmigrant student overstayed and operated a used car dealership without authorization. The Board of Immigration Appeals held that 'employment' includes self-employment, so unauthorized self-employment is unauthorized employment under section 245(c) of the Immigration and Nationality Act and bars adjustment of status.

A Colombian lawful permanent resident convicted of cocaine sale was ordered deported and denied a former INA 212(c) waiver. The Board of Immigration Appeals dismissed his appeal, holding that discretionary relief requires balancing adverse factors against social and humane considerations, that serious drug offenders must show unusual or outstanding countervailing equities, and that applicants with criminal records ordinarily must show rehabilitation.

The applicant, a Canadian citizen inadmissible because she had been deported for engaging in prostitution, sought advance permission to enter as a nonimmigrant under INA 212(d)(3)(B); the District Director denied the request for lack of rehabilitation and absence of 'compelling' humanitarian circumstances. The Board of Immigration Appeals held that an applicant's reasons need not be 'compelling' and that the request should be granted after weighing the risk of harm to society, the seriousness of any immigration or criminal law violations, and the nature of the applicant's reasons for entry.

An international tire company sought L intracompany transferee classification for a French education specialist, but the beneficiary had only about nine months of employment when the petition was filed, and her knowledge of the French educational system was found to be an employee fringe benefit rather than specialized knowledge directly tied to commercial expansion. The Regional Commissioner affirmed the District Director's denial, holding that the one-year employment requirement must be met at filing and that specialized knowledge must directly concern the expansion of commerce or enable an American business to compete in overseas markets.

A lawful permanent resident petitioned for his unmarried daughter as a second-preference beneficiary, but the birth record did not name the father and the petitioner failed to show that she was legitimate or legitimated. The Board of Immigration Appeals held that the petitioner bore the burden of proving the claimed relationship and dismissed the appeal, affirming the denial.

The respondent sought adjustment of status under section 245 of the Immigration and Nationality Act but invoked the Fifth Amendment when asked about the source of large sums of cash found in his possession. The Board of Immigration Appeals held that meeting the objective prerequisites makes an applicant merely eligible, not entitled, to adjustment, and that an applicant for discretionary relief must supply information within his knowledge relevant to the exercise of discretion; by refusing to disclose the source of the funds, he failed to carry his burden, and the application was properly denied.

The Canadian respondent worked in Canada for a Michigan corporation that had no Canadian subsidiary or branch office, entered the United States in 1974 as an L-1 intra-company transferee, and was later placed in deportation proceedings on the ground that he did not qualify for L-1 classification. The Board of Immigration Appeals held that section 101(a)(15)(L) does not expressly require the employer to have a subsidiary or other legal entity abroad and that such a requirement should not be implied in deportation proceedings, reversing the immigration judge and terminating the proceedings.

The applicant, a permanent resident commuter, was stopped at the border with 162 pounds of marihuana concealed in his vehicle; the Board of Immigration Appeals held that exclusion under section 212(a)(23) as an illicit trafficker did not require a criminal conviction and could rest on reason to believe he knowingly participated in the smuggling attempt, even after the criminal complaint was dismissed. The Board further held that a single smuggling attempt sufficed to establish trafficker status and that a commuter's departure was not a meaningful departure under Fleuti, so exclusion proceedings applied upon return.

A Chinese restaurant sought sixth-preference classification for a foreign foods specialty cook who did not yet have the one year of experience required by the job offer on the date the labor certification request was accepted. The Acting Regional Commissioner held that the petition filing date is the date the labor certification request was accepted by the employment service system, and that experience acquired after that date cannot support the petition, so the appeal was dismissed.

The petitioner sought sixth-preference classification for a beneficiary as a store manager at a monthly salary of $850, but the record showed that at the time of filing the petitioner did not and could not pay the offered wage, and on appeal failed to establish that it could and would pay it in the future. The Acting Regional Commissioner held that a sixth-preference visa petition requires a realistic job offer and proof of the petitioner's financial ability to pay the proffered wage at the time of filing, and denied the petition under section 204(b) of the Immigration and Nationality Act.

Saunders, a British citizen, adjusted status as the spouse of a U.S. citizen after disclosing two English marijuana convictions; the Board distinguished Lennon because his second conviction under the Misuse of Drugs Act 1971 required guilty knowledge, so it could support deportability under section 241(a)(11). The Board nevertheless held that within five years of adjustment, rescission under section 246 must precede deportation proceedings, and it terminated the proceedings because the rescission notice was inadequate, no hearing was afforded, and the final rescission notice was never received; reconsideration was denied.

An alien who had overstayed her tourist visa by four years sought adjustment to permanent resident status under 8 U.S.C. § 1255(a); the immigration judge denied the application as a matter of discretion because of serious misrepresentations to the consul, without first deciding statutory eligibility. The Supreme Court held that, where the application would properly be denied regardless of statutory eligibility, the immigration judge need not make advisory findings on eligibility, and reversed the en banc Third Circuit.