Cite as 25 I&N Dec. 231 (BIA 2010) Interim Decision #3679
1 After filing a Notice of Appeal on January 2, 2008, the respondent also submitted a motion
to remand on January 14, 2008. The Department of Homeland Security has opposed the
respondent’s motion. Inasmuch as the respondent’s motion is in the nature of an appeal brief
and offers substantially the same arguments, we have treated it as a brief. Under the
regulations, a motion filed during the pendency of an appeal may be deemed a motion
to remand, which generally does not count against the time and numeric limitations on the
filing of motions to reopen. See 8 C.F.R. § 1003.2(c)(4) (2010); see also Matter of Oparah,
23 I&N Dec. 1, 2 (BIA 2000) (stating that in the absence of a final administrative decision,
a motion to remand submitted during an appeal is not subject to the regulatory time and
number limits that apply to a motion to reopen, because the clock for filing a motion
to reopen does not start until the entry of a final administrative decision).
231
Matter of Serapio Felimon ALANIA-Martin, Respondent
File A099 799 967 – Boise, Idaho
Decided April 30, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Aliens who are otherwise eligible to adjust status under section 245(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1255(i) (2006), are not subject to the unauthorized
employment restrictions of sections 245(c) and the exception for such employment in section
245(k) that apply to applications for adjustment of status under section 245(a).
FOR RESPONDENT: Nicole R. Derden, Esquire, Nampa, Idaho
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lillian L. Alves, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
FILPPU, Board Member:
In a decision dated December 3, 2007, an Immigration Judge found the
respondent removable on his own admissions and denied his application for
adjustment of status under section 245(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1255(i) (2006), which was based on his approved Application
for Alien Employment Certification (Form ETA-750) and Petition for Alien
Worker (Form I-140). The Immigration Judge therefore ordered him removed
from the United States. The respondent has appealed from that decision.1
TheCite as 25 I&N Dec. 231 (BIA 2010) Interim Decision #3679
232
appeal will be sustained, and the record will be remanded to the Immigration
Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The facts relevant to this appeal are undisputed. The respondent, who
is a native and citizen of Peru, was admitted to the United States on November
12, 1996. He overstayed the temporary period of presence authorized by his
nonimmigrant visa, which ended on December 3, 1996, and was subsequently
engaged in unauthorized employment. The respondent’s I-140 with a priority
date of April 30, 2001, was approved by the Department of Homeland Security
(“DHS”) on December 21, 2006.
A Notice to Appear initiating removal proceedings against the respondent
was filed on July 16, 2007. The respondent then filed an adjustment packet,
including an Application to Register Permanent Residence or Adjust Status
(Form I-485), on October 17, 2007. Based on the approved I-140, the
respondent argued before the Immigration Judge that he is eligible for
adjustment of status under section 245(i) of the Act. The Government attorney
opposed the respondent’s application on the basis of his unauthorized
employment. The Immigration Judge issued an oral decision concluding that
the respondent is ineligible for adjustment of status because he admitted
to engaging in unauthorized employment.
On appeal, the respondent argues that the Immigration Judge erred
in denying his adjustment application because section 245(i) of the Act
specifically states that the unauthorized employment provisions of section
245(c) do not apply to adjustment of status under that section. In response,
the Government asserts that the provisions of section 245(k) regarding
unauthorized employment are nevertheless applicable to section 245(i)
adjustment applications and render respondent ineligible for adjustment.
II. ISSUE
The issue presented in this appeal is whether an alien who is otherwise
eligible to adjust status under section 245(i) of the Act is subject to the
unauthorized employment restrictions of sections 245(c) and the exception for
such employment in section 245(k) that apply to applications for adjustment
of status under section 245(a). Cite as 25 I&N Dec. 231 (BIA 2010) Interim Decision #3679
233
III. ANALYSIS
In analyzing this issue, we begin with the plain language of the relevant
statutory texts. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS
v. Phinpathya, 464 U.S. 183, 189 (1984) (stating that in all cases involving
statutory construction, the starting point must be the language employed
by Congress and the legislative purpose is expressed by the ordinary meaning
of the words used). In relevant part, section 245(c)(2) of the Act, which relates
to “Aliens Continuing or Accepting Unauthorized Employment,” provides that
“subject to subsection (k),” an alien is ineligible for adjustment of status under
section 245(a) who
continues in or accepts unauthorized employment prior to filing an application for
adjustment of status or who is in unlawful immigration status on the date of filing the
application for adjustment of status or who has failed (other than through no fault
of his own or for technical reasons) to maintain continuously a lawful status since
entry into the United States.
In turn, section 245(k) of the Act, entitled “Inapplicability of Certain
Provisions for Certain Employment Based Immigrants,” provides as follows:
An alien who is eligible to receive an immigrant visa under paragraph (1), (2),
or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in
section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant
to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if—
(1) the alien, on the date of filing an application for adjustment of status,
is present in the United States pursuant to a lawful admission;
(2) the alien, subsequent to such lawful admission has not, for an aggregate
period exceeding 180 days—
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien’s admission.
(Emphasis added.)
These statutory texts reflect that sections 245(c)(2) and (k) are mutually
referential provisions that operate in the context of adjustment of status under
section 245(a) of the Act. Section 245(k) does nothing more than create
a limited exception from the general prohibition in section 245(c)(2) that bars
an alien who engaged in unauthorized employment from adjusting status
under section 245(a). This exception applies to unauthorized employment for
beneficiaries of employment-based visa petitions approved under sections
203(b)(1), (2), and (3) of the Act, 8 U.S.C. §§ 1153(b)(1), (2), and (3) (2006),
as well as for religious workers under section 203(b)(4). Section 245(k), like
section 245(c), contains no reference to section 245(i) of the Act, which, for
its part, correspondingly provides that an otherwise eligible alien may adjustCite as 25 I&N Dec. 231 (BIA 2010) Interim Decision #3679
2
We note that Congress created section 245(k) of the Act at the same time it eliminated
section 245(i). See Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1998, Pub. L. No. 105-119, §§ 111(a)–(b), 111 Stat. 2440,
2458 (enacted Nov. 26, 1997); see also Matter of Briones, 24 I&N Dec. 355, 360 (BIA 2007)
(reviewing the legislative history of section 245(i) of the Act); Ira J. Kurzban, Immigration
Law Sourcebook 10 (11th ed. 2008-09).
234
to permanent resident status “[n]otwithstanding the provisions of subsections
(a) and (c) of this section.”2

Thus, neither section 245(c)(2) nor section 245(k) bars the respondent’s
application for adjustment of status under section 245(i). See Matter of L-K-,
23 I&N Dec. 677, 678 (BIA 2004) (noting that “some persons precluded from
seeking adjustment under section 245(c) of the Act are allowed to apply for
adjustment under the additional requirements set forth in section 245(i) of the
Act”). Rather, as stated, section 245(k) of the Act is an exception to the bars
to adjustment of status under section 245(a) set forth in sections 245(c)(2), (7),
and (8) that can be sought by any alien meeting the terms of section 245(k).
Section 245(i), on the other hand, operates as a total waiver of any section
245(c) bar for the limited pool of aliens who have the qualifying section 245(i)
priority date.
Although we see no particular ambiguity in the interplay of these respective
subsections of section 245 of the Act, we observe that our construction accords
with the Attorney General’s regulations implementing section 245(i). See
National Lead Co. v. United States, 252 U.S. 140, 145-46 (1920) (recognizing
that “great weight” should be given to an agency’s “contemporaneous
construction” of an ambiguous statute it administers through its regulations,
“especially where such construction has been long continued”); see also
Matter of Fede, 20 I&N Dec. 35, 36 (BIA 1989) (“A regulation promulgated
by the Attorney General has the force and effect of law as to this Board
and immigration judges . . . .”).
The principal regulation governing eligibility for adjustment of status
under section 245(i) of the Act is 8 C.F.R. § 1245.10 (2010), which was
initially promulgated in 1994 shortly after Congress enacted section 245(i).
See Matter of Briones, 24 I&N Dec. 355, 360 (BIA 2007); Adjustment
of Status to That of Person Admitted for Permanent Residence; Temporary
Removal of Certain Restrictions of Eligibility, 59 Fed. Reg. 51,091, 51,095-96
(Oct. 7, 1994). That regulation provides, in relevant part, that “[a]n alien who
is included in the categories of restricted aliens under [8 C.F.R.] § 1245.1(b)
and meets the definition of a ‘grandfathered alien’ may apply for adjustment
of status under section 245[i] of the Act.” 8 C.F.R. § 1245.10(b). In turn,
8 C.F.R. § 1245.1(b) (2010) sets forth the categories of restricted aliens who
are, with certain exceptions not relevant here, “ineligible to apply forCite as 25 I&N Dec. 231 (BIA 2010) Interim Decision #3679
235
adjustment of status to that of a lawful permanent resident alien under section
245 of the Act, unless the alien establishes eligibility under the provisions
of section 245(i) of the Act and § 1245.10.” Included in these categories
of aliens who may only seek adjustment under section 245(i) is “[a]ny alien
who, on or after January 1, 1977, was employed in the United States without
authorization prior to filing an application for adjustment of status.” 8 C.F.R.
§ 1245.1(b)(4). Thus, it is plain from these regulations that the Attorney
General has not regarded unauthorized employment as a bar to adjustment
of status under section 245(i) of the Act. To the contrary, the regulations
specifically exempt aliens who are otherwise eligible for adjustment of status
under section 245(i) from the bar for unauthorized employment.
IV. CONCLUSION
For the foregoing reasons, we hold that an alien who is otherwise eligible
to adjust status under section 245(i) of the Act is not subject to the
unauthorized employment restrictions of sections 245(c) and the exception
contained in section 245(k) that apply to adjustment of status under section
245(a). Accordingly, the respondent’s appeal will be sustained and the record
will be remanded to the Immigration Judge.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing decision and for the entry
of a new decision.