Dong Sik Kwon v. Immigration and Naturalization Service

• Decision Date: 04 May 1981
• Docket Number: No. 79-2850,79-2850
• Citation: 646 F.2d 909
• Parties: DONG SIK KWON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 909

646 F.2d 909

DONG SIK KWON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 79-2850.

United States Court of Appeals Fifth Circuit.

May 4, 1981.

Eugenio Cazorla, Dallas, Tex., for petitioner.

Eric Fisher, James P. Morris, Attys., George W. Masterton, Asst. Gen. Counsel, INS, Chief Govt. Reg. & Labor Section, U. S. Dept. of Justice, Washington, D. C., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before GODBOLD, Chief Judge, BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK, and WILLIAMS, Circuit Judges. ^*

ALVIN B. RUBIN, Circuit Judge:

A native and national of Korea who had come to the United States for a temporary visit with a visitor's visa submitted an application for adjustment of status to the Immigration and Naturalization Service (INS). Dong Sik Kwon sought a change to permanent residence status as an investor. At the time Kwon submitted his application, no nonpreference applicants could be admitted because the numerical limitation for Korean nonpreference visas had been reached. However, the INS did not notify Kwon of this fact for two years. He contends that, had he known that no visa was available for a nonpreference immigrant, he would instead have applied for a visa as a preference immigrant, and sought adjustment of his status on the basis of a labor certification. Having since filed such an application, he seeks to have it accorded a priority date retroactive to the time when, had he received prompt advice from the INS, he could have done so. A panel of this court, considering itself bound by a prior panel decision, Suh v. Immigration and Naturalization Service, 592 F.2d 230 (5th Cir. 1979), remanded the case for a further hearing to determine whether Kwon had been prejudiced by the government's inaction. Kwon v. Immigration and Naturalization Service, 610 F.2d 353 (5th Cir. 1980). The court later granted a rehearing en banc, automatically vacating that decision. Kwon v. Immigration and Naturalization Service, 625 F.2d 1310 (5th Cir. 1980) (en banc). We now conclude that Kwon is not entitled to the relief he seeks and that the INS is not estopped to deny it to him. Therefore, we affirm the decision of the Board of Immigration Appeals.

I.

The significant facts do not take on full meaning until they are portrayed against the pattern established by the statutes and the intricate scheme of the regulations. The administration and enforcement of the immigration laws are the divided responsibility of the Attorney General, the Secretary of State, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Education, the International Communication Agency and the Congressional immigration committees. J. Wasserman, Immigration Law and Practice 11 (3d ed. 1979). The Attorney General is charged with the enforcement of the immigration laws, 8 U.S.C. § 1103, and he has delegated this responsibility to the INS.

An alien may seek admission to the United States temporarily as a nonimmigrant under conditions prescribed by the Attorney General. 8 U.S.C. § 1184. A visa may be issued to a nonimmigrant who has a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for either business or pleasure. See 8 U.S.C. § 1101(a)(15)(B). See also 8 C.F.R. 214.2(b) (1980), 22 C.F.R. 41.25 (1980). There is no quota for such visitors.

Congress has, however, prescribed an annual quota (now called a numerical limitation) limiting to 290,000 the number of aliens who may be admitted as immigrants for permanent residence. At the time Kwon applied, admissibility was limited to 170,000 immigrants from the Eastern Hemisphere and 120,000 from the Western Hemisphere. 8 U.S.C. § 1151(a). ¹ Subject to statutory exceptions not here relevant, no person may receive any preference or priority because of race, sex, nationality, place of birth or place of residence, but the total number of visas made available to natives of any single foreign state may not exceed 20,000 in any fiscal year. 8 U.S.C. § 1152(a). Aliens who are subject to these numerical limitations are allotted available visas based on a series of preferences that are prescribed by statute for certain classes of immigrants. 8 U.S.C. § 1153(a)(1)-(8). ² The first two preferences are for certain classes of relatives of United States citizens. The third includes members of the professions and persons of exceptional ability in the sciences and arts whose services are sought by an employer in the United States. The fourth and fifth preferences are for other classes of relatives. The sixth preference is for persons capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States. To secure a visa under the sixth preference, the applicant must obtain a "labor certificate" from the Secretary of Labor. 8 U.S.C. § 1182(a)(14). If all of the available visas are not used by persons entitled to a preference, they are made available to other qualified immigrants "strictly in the chronological order in which they qualify." 8 U.S.C. § 1153(a)(8). Any immigrant who wishes to enter this country under any preference category, or as a nonpreference immigrant, must secure a labor certificate or be entitled to an exemption from that requirement.

All six preference classes take precedence over investor applicants. Therefore an applicant who, like Kwon, seeks investor status is accorded no preference. Investor status merely exempts the applicant from labor certification requirements. See 8 U.S.C. § 1182(a)(14); 8 C.F.R. § 212.8(b)(4) (1980). Investors need not obtain such a certification because an investor does not compete with American workers for jobs. In fact, the present regulations involving investors require that the applicant-investor provide at least one American citizen or permanent resident alien with a job. ³ 8 C.F.R. 212.8(b)(4) (1980). The regulations in force at the time Kwon applied as an investor required the alien to establish that he was seeking to enter the United States to engage in an agricultural or commercial enterprise in which at least $10,000 would be invested and that he had at least a year of experience or training qualifying him to engage in such an enterprise. 8 C.F.R. § 212.8(b)(4) (1976); 22 C.F.R. § 42.91(a)(14)(ii)(d) (1976).

While the Attorney General is given final discretion to grant or refuse a visa, the Secretary of State has plenary control of the visa issuing process. 8 U.S.C. § 1104. See also 22 C.F.R. Subchapter E (1980). Pursuant to Department of State regulations, authorized by statute, visas are issued by United States Consuls. ⁴ The State Department's regulations provide for allocation of numbers for use in connection with the issuance of immigrant visas and adjustments of status on a quarterly basis within each fiscal year. 22 C.F.R. 42.60(a), (b) (1980). See also 8 U.S.C. § 1151(a). Under this system a visa number may be allocated to a person who does not in fact use it. If this happens, for whatever reason, the nonuse of the visa must be reported to the Department so that another visa can be issued during the same fiscal year. Otherwise, that vacancy in the quota is irretrievably lost. 22 C.F.R. 42.60(c) (1980).

The status of an alien, admitted temporarily, who "was inspected and admitted or paroled into the United States may be adjusted to that of an alien lawfully admitted for permanent residence" by the Attorney General "in his discretion and under such regulations as he may prescribe." 8 U.S.C. § 1255. Such a change involves altering the status of an alien who is in the United States illegally or temporarily from that of visitor or illegal alien to that of lawful permanent resident. To qualify for a change of status four conditions must be met: the alien must apply for this adjustment by submitting a form I-485, must be eligible to receive an immigrant visa, must be admissible as a permanent resident and, according to the statute in effect when Mr. Kwon applied, "an immigrant visa (must be) immediately available to him at the time his application is approved." Id. ⁵

Within the Department of Justice, such applications are handled by the INS pursuant to regulations adopted by the Attorney General in accordance with the statute. 8 U.S.C. § 1255(a); 8 C.F.R. Part 245 (1976) ("Adjustment of Status To That of Person Admitted For Permanent Residence."). The alien applies for such an adjustment by submitting Form I-485 to the INS district director having jurisdiction over his place of residence. 8 C.F.R. § 245.2(a)(1) (1976). The regulations provided that, before the application "may be considered properly filed, a visa must be immediately available." 8 C.F.R. § 245.2(a)(2) (1976). ⁶ However, an application for adjustment of status may be filed either simultaneously with a visa petition or without a visa petition. No visa petition is required, for example, if the applicant has a priority on an American consular waiting list, has already received approval of a visa petition, or is entitled to preference as the spouse or child of a beneficiary of a visa petition or as a refugee or in certain other circumstances. See Form I-485, Part 13.

The regulations in effect at the time Mr. Kwon submitted his Form I-485 provided, "If a visa petition is submitted simultaneously with the adjustment application, the adjustment application shall be retained and processed only if the petition is found to be in order for approval upon initial review by an immigration officer, is approved, and approval makes a visa immediately available." 8 C.F.R. § 245.2(a)(2) (1976). ⁷ The regulations also provided that an...