Recent decision from the BIA – Matter of Alania. Respondent is from Peru. He entered the U.S. in 96 on a temporary visa, overstayed, and engaged in unauthorized employment. A labor certification was filed for him before April 30, 2001 and was approved. An I-140 Petition was then filed for him which was also approved on December 21, 2006. Section 245i allows him to adjust status based on an employment petition despite his overstay and unauthorized employment because he is the beneficiary of a labor certification filed on or before April 30, 2001 and he was physically present in the U.S. on December 21, 2000. However, the Immigration Judge denied his application for adjustment of status because he engaged in unauthorized employment. On appeal, the Board of Immigration Appeals held that a respondent who is otherwise eligible to adjust status under INA section 245(i) is not subject to the unauthorized employment restrictions of sections 245(c). The provisions of section 245(k) regarding unauthorized employment are not applicable to section 245(i) adjustment applications. The alien is thus eligible to adjust the permanent resident status. The case was remanded to the Immigration Judge for the continuation of proceedings consistent with the Board’s decision.
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