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EUN-HEE LEE v. UNITED STATES

January 16, 1987

EUN-HEE LEE, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, United States District Judge

 This case is before the Court on cross-motions for summary judgment. The motions involve the Immigration and Naturalization Service's (INS) decision to deny plaintiff's request for temporary work authorization. Plaintiff seeks to confute the denial of employment authorization on the grounds that it deprives her of due process and equal protection rights. At the outset, however, the Court notes that the narrow focus in this matter is whether the denial, in the context of the relevant facts, was unlawful. Plaintiff is not petitioning the Court to declare that she is entitled to a Third Preference status; that application was deemed not properly filed by the same officer who denied work authorization. After review of the motions, the oppositions thereto, the administrative record and the applicable statutes and regulations, the Court concludes that the denial was proper.

 The unique facts of this case support an initial determination that the change-of-status application was not "properly filed" and consequently the officer was prohibited from granting work authorization. Therefore, the issues raised concerning an officer's discretionary power under the regulations and a non-immigrant's right to employment during the processing of an application need not be addressed at this time. *fn1"

 I

 On or about July 26, 1984, the restaurant firm of Truth and Etern, Co. filed an application for Alien Employment Certification with the Department of Labor (DOL), 8 U.S.C. § 1182(a)(14). The application requested certification of a manager-trainee position to effectively run the food establishment. In particular, the application sought someone with a liberal arts degree and with the ability to read and speak Korean. Administration record, Defendant's Exhibit A. DOL approved the certification on May 7, 1985. On or about April 17, 1984, Eun-Hee Lee entered the United States pursuant to a visitor's visa. She is a graduate of EWHA Women's University Seoul, Korea, with a master of arts degree in social work. On July 1, 1985, Truth and Etern filed an I-140 with the INS, on Ms. Lee's behalf, petitioning to classify Preference Status of an Alien on the Basis of Profession or Occupation (3rd Preference). *fn2" Record, Defendant's Exhibit B. 8 U.S.C. § 1153(a)(3).

 On July 30, 1985, Eun-Hee Lee applied for an adjustment of status to that of permanent resident pursuant to 8 U.S.C. § 1255(a). At that time, the visa petition filed on her behalf had not yet been approved. Plaintiff's Exhibit p. 15. The statute reads:

 
The status of an alien . . . who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved.

 On that same day, the plaintiff and her attorney were referred to the Immigration Officer for a change-of-status interview. At the processing interview, plaintiff's oral request for work authorization, pursuant to 8 C.F.R. 109.1(b)(3), was denied. The Immigration Officer attempted to reject the adjustment-of-status application because the job relevant to the visa petition was not a professional position within the meaning of the INS guidelines. Consequently, an immigrant visa was not immediately available and the application was considered not properly filed. Plaintiff, through her attorney, asserted that the filing was valid, the application approvable and insisted that the officer accept the change of status application. Plaintiff's Motion for Summary Judgment (PSJ) at 5.

 On August 2, 1985, after counsel sent a letter to appeal the INS officer's actions, Robert Neptune, District Director of the Washington District Office, INS, upheld the interviewer's decision; he denied the visa petition, deemed the adjustment of status application not properly filed, and denied the work authorization request. Record, (PSJ) at 2, 4. Truth and Etern appealed the denial of the visa petition and that appeal is still pending.

 II

 Although not statutorily mandated under the Code section for Adjustment of Status, 8 U.S.C. § 1255, the regulations subsequently promulgated state:

 
Any alien who has properly filed an application for adjustment of status to permanent resident alien may be granted permission to be employed for the ...

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