Matter of PATEL

1116e1:1111 - (cid:9) MATTER OF PATEL In Section 246 Proceedings A-20289698 Decided by Board January 25, 1978 (1) Under the provisions of 20 C.F.R. 656.30(d), effective February 18, 1977, a labor certification issued by the Labor Department is subject to invalidation by the Immigra- tion and Naturalization Service or the Department of State only upon a finding of fraud or willful misrepresentation of a material fact involving the labor certification applica- tion. (2) Matter of Hernandez-Uriarte, 13 I. & N. Dec. 199 (BIA 1969) interpreting 29 C.F.R. 60.5(g), the regulation superseded by 20 C.F.R. 656.30(d), is superseded. (3) Since under the new controlling regulation a finding of fraud or willfulness is required to invalidate a labor certification duly issued by the Labor Department, and the immigration judge specifically refrained from making such a finding in view of our interpretation of the previously controlling regulation, the record is remanded for a new evidentiary hearing to allow the respondent and the Service an opportunity to explore the issue.

ON BEHALF OF RESPONDENT: (cid:9) Peter D. Williamson, Esquire (cid:9) 1320 Americana Building (cid:9) Houston, Texas 77002 ON BEHALF OF SERVICE: Daniel L. Kahn Trial Attorney BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members This is an appeal from a decision of an immigration judge dated April 13, 1977, ordering the rescission of the adjustment of status granted to the respondent. The appeal will be sustained and the record will be remanded for further proceedings. The record relates to a married female alien, native and citizen of India, whose status was adjusted to that of an alien admitted for permanent residence on May 7, 1975. Her status was adjusted primarily on the basis of a labor certification approved on January 22, 1974.

The Service concluded that this labor certification was invalid- These rescis- sion proceedings were instituted. The immigration judge found that the respondent's labor certification was invalid because it was obtained on the basis of materially incorrect representations to the Labor Department both as to the background of employment, and the potential employment in the United States. Al- though fraud was alleged by the Service in the Notice of Intention to 444 1111,C1111/ I/et:Mit/1i ffGeOG Rescind, the immigration judge specifically refrained from making a determination on the alleged fraud. The immigration judge found that the material misrepresentations found by him to have been made were sufficient to invalidate the labor certification under .5(g).

The immigration judge's finding as to the requirements to invalidate a labor certification under .5(g) was correct under our in- terpretation of that regulation. See Matter of Hernandez-Uria.rte, 13 I. & N. Dec. 199 (BIA 190); Matter of Gonzalez-Becerra, 13 I. & N. Dec. 387 (BIA 1969).' However, this case is not governed by that regulation.

Effective February 131,, 1977, 29 C.P.R. 60.5(g) was superseded by 20 C.F.R. 656.30(d). See 42 F.R. 3440 (January 18, 1977). This new con- trolling regulation reads: After issuance labor certifications are subject to invalidation by the INS or by a Consul of the Department of State upon a determination, made in accordance with those agencies' procedures or by a Court, of fraud or willful misrepresentation of a material fact involving the labor certification application. If evidence of such fraud or willful misrepresentation becomes known to a Regional Administrator, Employment and Training Administration or to the Administrator, the Regional Administrator or Ad- ministrator, as appropriate, shall notify in writing the INS or State Department, as appropriate.

In view of the fact that a finding of fraud or of willful misrepre- sentations of a material fa ct involving the labor certification application is required under the new regulation to invalidate a labor certification, findings not made by the immigration judge because they were unneces- sary under our interpretation of the previously controlling regulation, the record will be remanded for further proceedings before the immi- gration judge. A new evidentiary hearing should be conducted to allow the respondent and the Service to explore the issue. We note that the Service may deem it appropriate to amend the Notice of Intention to Rescind in light of our decision in Matter _of Darlquak, Interim Decision 2578 (BIA 1977), rendered subsequent to the institution- of these proceedings. ORDER: The appeal is sustained and the record is remanded for further proceedings.

However, our interpretation of .5(g) was disapproved by the United States Court of Appeals for the District of Columbia Circuit in Castaneda-Gonzalez v. INS, 564 F.2d 417 (D. C. Cir. 1977). 445