Kawahara, Glenn N., Esquire 1055 Wilshire Blvd. #1890 Los Angeles, CA 90017 -0000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel • SND 880 Front St., Room 1234 San Diego, CA 92101-8834

Name: LEE, DO KYUNG A 089-047 -352 Riders:089-047-354 089-047-355 089-047-353

Date of this notice: 11/5/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Pauley, Roger Greer, Anne J. Cole, Patricia A.

Sincerely,

Dowu... {! t1JVL)

Donna Carr Chief Clerk

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)

U.S. Department of Justice Executive Office'for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Files: A089 047 352 - San Diego, CA A089 047 353 A089 047 354 A089 047 355

In re: DO KYUNG LEE HYUN KOO KIM JIN WAN KIM NA YOUNG KIM

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENTS: Glenn N. Kawahara, Esquire

ON BEHALF OF DHS: J.L. Woodmansee Assistant Chief Counsel

CHARGE:

NOV .� 62013

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law (all respondents) (sustained)

APPLICATION: Adjustment of status

The respondents, natives and citizens of South Korea, have appealed the September 12, 2011, decision of the Immigration Judge denying the lead respondent's application for adjustment of status and granting the respondents the privilege of voluntary departure. See sections 240B(b) and 245 of the Immigration and Nationality Act, 8 U.S.C. §§ 1229c(b), 1255. The appeal will be sustained. The record will be remanded.

The respondents are wife and husband and their son and daughter (l.J. at 2). The Immigration Judge found that they were admitted to the United States as nonimmigrants on E-2 investor visas, that the husband respondent (A089 047 353) was the principal, and that they remained in such nonimmigrant status until March 2009 (1.J. at 2). The Immigration Judge noted that subsequently, the wife respondent (A089 047 352) applied for adjustment of status based on an approved visa petition and labor certification filed on her behalf, which the Department of Homeland Security (DHS) denied (l.J. at 2; Exh. 7). Accordingly, for purposes of this decision, the wife respondent is the lead respondent.

The Immigration Judge observed that the DHS denied the lead respondent's adjustment application because she was employed as a dental technician from September 2003 until October 2007 and then again after October 2008 without having obtained employment

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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)

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authorization (I.J .at 3-4 ). 1 In his analysis, the Immigration Judge took account of the relevant sections of the Act and regulations and concluded that it is implied that the lead respondent was required to apply for work authorization in order to be employed such that she is barred from adjustment under section 245( c) of the Act (I.J. at 4-5).

On appeal, the lead respondent argues that nothing in the statute or regulations sets forth an application procedure or work authorization application requirement for E-2 spouses.

Section lOl(a)(lS)(E) of the Act, 8 U.S.C. § l lOl(a)(lS)(E), provides that a "nonimmigrant" includes an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and a foreign state of which he or she is a national, and the spouse and children of any such alien if accompanying or following to join (Emphasis added).

Section 214( e )( 6) of the Act, 8 U.S. C. § 1184( e )( 6), states that in the case of an alien spouse admitted under section 10l(a)(l5)(E) of the Act who is accompanying or following to join a principal alien admitted under the same section, the Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an "employment authorized" endorsement or other appropriate work permit (Emphasis added).

8 C.F.R. § 274a.12(b)(5) (2013) indicates that a nonimmigrant treaty investor (E-2) is authorized to be employed in the United States by the specific employer and is not issued an employment authorization document. The regulation states further that employment authorization does not extend to the dependents of the treaty investor (E-2) unless otherwise specified under 8 C.F.R. § 274a.12(c)(2). This regulation, entitled "Aliens who must apply for employment authorization," provides that an alien spouse or unmarried dependent son or daughter of a nonimmigrant treaty trader (E-1) must apply for work authorization. However, the regulation does not specifically state that the spouse of a treaty investor (E-2) must do the same.

Consequently, the Act under section 214(e)(6) states that an E-2 spouse such as the lead respondent shall be authorized to engage in employment, but the regulations addressing aliens who must apply for employment authorization do not state that an E-2 spouse is included.

Section 24S(c)(2) of the Act states that an alien who continues in or accepts unauthorized employment prior to filing an adjustment application is not eligible for adjustment of status. However, section 214(e)(6) of the Act authorized the lead respondent to engage in employment.

Additionally, an alien is ineligible for adjustment under section 245( c )(8) of the Act if he or she was employed while the alien was an "unauthorized alien" under section 274A(h)(3) of the Act, 8 U.S.C. § 1324a(h)(3). An unauthorized alien means with respect to the employment of an alien at a particular time that the alien (A) is not a permanent resident or (B) authorized to be employed under the Act. However, although the lead respondent is not a permanent resident, again under section 214(e)(6) of the Act, she was authorized to be employed as an E-2 spouse.

1 The Immigration Judge found that the lead respondent did obtain an employment authorization document from the DHS from October 2007 until October 2008 (l.J. at 3).

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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)

1 A089 047 352� et al. '

Accordingly, while we acknowledge the apparent anomaly, also noted by the Immigration Judge (l.J. at 6), that the regulations require the principal E-2 visa recipient to apply for employment authorization but do not cover a dependent spouse, we must enforce and apply the regulations as written. Thus, we disagree with the Immigration Judge that under the Act or regulations the lead respondent is barred from adjustment of status under section 245( c) of the Act. Upon our de novo review, we reverse the Immigration Judge's decision. See 8 C.F.R. § 1003.l(d)(3)(ii) (stating that the Board reviews questions of law, discretion, and judgment de novo) .

Furthermore, the Immigration Judge denied the lead respondent's adjustment application stating that only part of the application was submitted, that her third preference skilled worker category was not current, and that she had not had her fingerprints taken (l.J. at 5). However, the record contains the adjustment application (I-485) and an approved visa petition and labor certification. Additionally, the August 2013 DHS visa bulletin indicates that her preference category has now progressed so that her priority date is current. Finally, regarding the lack of updated biometrics, the record does not reflect that the DHS complied with 8 C.F.R. § 1003.47(d). See Qi Cui v. Mukasey, 538 F.3d 1289, 1294 (9th Cir. 2008).

Accordingly, we find remand warranted. On remand, the Immigration Judge will further address the lead respondent's eligibility for adjustment of status, as well as that of the derivative respondents. The respondents will also have the opportunity to comply with the fingerprinting requirements.

ORDER: The respondents' appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for entry of a new decision.

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Cite as: Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013)

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U. S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

San Diego, California

File A 89 047 352, et al Date:

In the Matter of

DO KYUNG LEE, et al

RespondentS

CHARGE:

APPLICATIONS:

APPEARANCES:

Section 237 (a) (1) (B) of the Immigration and Nationality Act (ACT) - an alien who after admission as a non immigrant under Section lOl(a) (15) of the Act remained in the United States for a time longer than permitted.

Adjustment of status pursuant to Section 245 of the Act and in the alternative for all Respondents, voluntary departure at conclusion of proceedings under Section 240B (b) of the Act.

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:

Glenn Kawahara, Esquire Jennifer L. Woodmansee, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

This oral decision is being rendered live in the

presence of the parties on September the 12th, 2011 in San Diego,

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California at the conclusion of the presentation of the evidence

in this case.

All Respondents are charged as natives and citizens of

the Republic of South Korea who were admitted to the United States

on or about February 23, 2001 as non immigrant E-2 investors with

authorization to remain in the United States for a period of time

which was extended until March 28, 2009. It is alleged that the

Respondents all remained in the United States beyond March 28,

2009 without authorization from the DHS and that is the basis for

their charge of removal.

All Respondents, through Counsel, admitted and conceded

that they were removable as charged and the Court so finds.

It is important first to identify the Respondents here

to understand the nature of the relief at this stage of the case.

The lead Respondent, Ms. Lee, is married to Respondent, Hyun Koo

Kim, File 089 047 353. Gin Wan Kim and Na Young Kim are their

children.

Originally, Mr. Kim, the husband was the principal

recipient of the non immigrant E-2 investor visa. The lead

Respondent, Ms. Lee, and the children were the derivatives of that

original entry category.

Subsequently, Ms. Lee, the lead Respondent, applied for

adjustment before the DHS/CIS based on a labor petition that had

been filed as a skilled worker, a dental technician.

That application for Adjustment of Status is the relief

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before the Court today.

It is important to note that Ms. Lee's husband, Mr.

Kim's original status as a non immigrant E-2 investor has expired

and the DHS/CIS has not extended or renewed that status.

Therefore, Mr. Kim as well as the lead Respondent and the children

are no longer the beneficiaries or recipients of that original non

immigrant status which has now expired.

In the adjustment application filed by Ms. Lee, the

husband, Mr. Kim, and the children are the derivatives. They are

expecting to adjust their status as derivatives if Ms. Lee's

adjustment application is granted.

The CIS denied Ms. Lee's application for adjustment of

status and according to their letter of denial which is in the

record at Exhibit 7, the reason for the denial was that Ms. Lee

had been employed as a dental technician from September 2003 until

October 24, 2007 without having obtained employment authorization

from the DHS. Also in the letter of denial, Exhibit 7-A, it

indicated that Ms. Lee did obtain employment authorization for a

period of one year from October 24, 2007 until October 23, 2008

however, that period of authorized employment expired on October

23, 2008 and Ms. Lee continued to be employed as a dental

technician in the family business, Pro-Tech Dental Lab until the

date of the letter of denial which was September 4, 2009. In that

letter they expressed the reasons why they are denying the

Adjustment of Status based on that period of employment exceeding

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180 days without having received employment authorization.

The lead Respondent requested reconsideration or

reopening of that decision and that request was denied by the

DHS/CIS on December 15, 2009. That is part of the record as

Exhibit #2.

The parties agree that the issues appear to be legal and

not factual. The lead Respondent is arguing that the statute

appears to mandate that dependents of the E category be provided

authorization for employment in the United States. The Respondent

points out Section 214 (e) (6) of the Act which states:

In the case of an alien spouse admitted under Section

lOl{a) (15) {E) . . . who is accompanying or following to

join a principal alien admitted under such section,

the Attorney General shall authorize the alien spouse

to engage in employment in the United States and

provide this spouse with an "employment authorized"

endorsement or other appropriate work permit.

The lead Respondent argues that the regulations, which

do appear to require that the spouse of an E category, a non

immigrant, apply for employment authorization, are inconsistent

with the statute and lead Respondent reques�that the Court

disregard those regulations and conclude that the basis for the

denial of adjustment is not supported by the law.

The Respondent was given an opportunity to present the

Adjustment of Status application to the Court and as indicated in

A 89 047 352, et al 4 September 12, 2011

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Exhibit 5, at the Master Calendar of our pretrial hearing on May

11, 2010, the Respondent was provided until October 18, 2010 to

submit the application and all supporting documents.

The Respondent, however, did not submit the application

Svb rn1 flee{ by the deadline and instead .i\tl · 'P ta part of the application

today. The Respondent's counsel blames prior counsel, saying he

was not aware of what had happened and apologizes for not filing

it on the deadline. However, even today, the application was not

complete as there were still parts of the application packet that

were not presented. In addition, it appears that the lead

Respondent's category had retrogressed and the labor visa is no

longer current) ihe fingerprints have expired and the Respondent

did not take them again. Therefore, technically speaking, the

Respondents were not able to put the Court in a position to

consider the adjustment application of the lead Respondent because

of these missing elements.

However, even assuming that they had complied with the

deadline set by the Court and had submitted the complete packet

for the adjustment, I don't believe that the Respondent's theory

is correct. 1) .S�e

Although j1fl. does present an interesting argument in

light of the language of the statute, I don't believe the

regulations requiring that the Respondent at least submit to being

examined and evaluated by the CIS for employment authorization is

inconsistent with the statute. I say this because it is implied

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in the language of the status that the government should have a

way of determining if indeed the lead Respondent would fall under

this category of a dependent of one who has a viable and existing

non immigrant E-category visa in order to receive that employment

authorization. I note that the E-category itself has many

requirements with respect to the type of employment that the

principal recipient of the E-category must comply with in order to

maintain that E-category status. It seems contradictory that

given all these restrictions on the type of employment that the

principal recipient of the E non immigrant category has to be in

compliance with, that the spouse dependent on that category would

simply work without any type of monitoring or supervision by the

DHS/CIS under the theory that she doesn't need to even submit to

the process of applying for employment authorization because the

statute mandates that she be authorized to be employed. I don't

think that the regulations requiring that she at least submit an

application for consideration by the DHS/CIS is inconsistent with

that language. Otherwise, reading it in the manner that the

Respondent wants it to be read, it would give the dependent spouse

of a recipient of the E non immigrant category a wider scope in

being employed in whatever capacity the dependent spouse wishes to

without any type of supervision by the government.

Therefore I think that the reasons stated by the DHS in

'denying the Adjustment of Status of the lead Respondent are valid

and I believe that unless the regulations are directly and clearly

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inconsistent with the statute, I have to follow the regulations as

this administrative tribunal is also a part of the executive

branch of the government. As indicated previously, I do not see

an inconsistency with the agency having the ability by requiring

that the Respondent apply for employment authorization to be able

to monitor if indeed she falls at that particular time within the

confines of the statute. In other words, I do not think that

requiring that she submit to the application and evaluation by DHS

is inconsistent with the mandate of Section 214 (e) (6) of the Act.

�NY JJ, The Respondent has not presented�other argument to allow d7

her to exempt herself from applying for the employment

authorization as required by the regulations and her argument that

she was none the less part owner of the business based on

California Community Property Law has not been developed factually

to enable the Court to find that this is an exception. No

authority has been provided either for such an exception to the

requirement in the regulation that she at least file an

application for employment authorization. She does admit that she

was employed as a dental technician for a salary of $2000 a month,

approximately, by Pro-Tech Dental Labs here in the United States

and that she did work for more than 180 days without receiving

employment authorization from the DHS/CIS.

Therefore the lead Respondent's application for

Adj ustment of Status based on Section 245 of the Act is denied,

even assuming that it had been properly filed.

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Alternatively, the application for Adj ustment of Status

is denied assuming that Respondent's would be eligible as it was

not filed complete and the category is not current.

The Respondents have applied also for the relief of

voluntary departure at conclusion of proceedings. They appear to

be eligible for that relief and there appears to be no opposition

to that relief, therefore the Court will grant voluntary departure

to each Respondent for a period of 60 days, which is the maximum

time, which if counted from today would expire on November 14,

2011. If any of the Respondents does not leave by the time

allowed, the voluntary departure order will be automatically

changed into an Order of Removal based on the respective charge in

the charging document. Furthermore, the voluntary departure is

conditioned upon the posting of a voluntary departure bond for

each Respondent in the amount of $500 for each Respondent. Each

Respondent shall post the $500 voluntary departure bond within

five business days of today's date. Five business days if counted

from today would be September 19, 2011.

If the Respondents do not comply with the conditions of

the voluntary departure granted today, the Respondents, in

addition to having Order of Removals, will suffer the consequences

that are explained in the written advisals that will be provided

to the Respondents at the conclusion of these proceedings which

are incorporated by reference to this decision.

For all of the above mentioned reasons, the Court issues

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the following orders.

ORDERS

All Respondents are found to be removable as charged.

Lead Respondent Do Kyung Lee's application for

Adjustment of Status is hereby denied. The application for

adj ustment is therefore denied for all the three derivative

Respondents.

The applications for voluntary departure at conclusion

of proceedings filed by all Respondents are hereby granted subj ect

to all the conditions as discussed previously as well as all the

(la 5v lt\ 11 C:.N� terms and conditions in the statute and the :icelations and the

tN11f k accompanying advisals that ._ provided at the conclusion of this

decision. So ordered.

IGNACIO P. FERNANDEZ Immigration Judge

A 89 047 352, et al 9 September 12, 2011

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(-

CERTIFICATE PAGE

I hereby certify that the attached proceeding before

IGNACIO P. FERNANDEZ, in the matter of:

DO KYUNG LEE

A 89 047 352

HYUN KOO KIM

A 89 047 353

GIN WAN KIM

A 89 047 354

NA YOUNG KIM

A 89 047 355

San Diego, California

was held as herein appears, and that this is the original

transcript thereof for the file of the Executive Office for

Immigration Review.

lam/jma

Lisa M. Murr, Transcriber

YORK STENOGRAPHIC SERVICES, INC. 34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077

-October 26, 2011

Completion Date

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