Petitioner Jung Been Suh, a Korean citizen, seeks review of an order by the Board of Immigration Appeals (BIA) denying an application for adjustment of status under § 245 of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1255 (1976).1 Petitioner overstayed his visa and was subject to deportation proceedings. In order to avoid deportation, he filed an application for adjustment of status as a non-preference immigrant.2 Although a visa number was not available to non-preference applicants at the time of petitioner's application, authorities of the Immigration and Naturalization Service (INS) accepted and retained the application. The immigration judge denied the application for adjustment of status and the BIA affirmed the decision. We hold that the retention and adjudication of petitioner's non-preference visa application was error. Accordingly, we vacate the BIA order and remand the case to the BIA with instructions to permit petitioner to file an application for a sixth preference visa with the benefit of his original April 1976 priority date.

Petitioner is the owner-operator of Fashion Paradise, a retail wig store in Fort Worth, Texas. He was formerly employed as the manager of Wig Flair, a retail wig store in Dallas, Texas, owned by W. Um Jung.

Petitioner was admitted to the United States at Honolulu, Hawaii, on August 16, 1972, as a non-immigrant visitor for business. He remained beyond the expiration of his visa, May 15, 1973. Consequently, on March 15, 1976, the INS commenced deportation proceedings against him. On April 13, 1976, in a hearing before an immigration judge, petitioner conceded deportability. The immigration judge granted him the privilege of voluntary departure in lieu of deportation until May 15, 1976.

Instead of voluntarily departing, on April 23, 1976, petitioner pro se filed Form I-485, an application for status as a permanent resident, and Form I-526, an application for exemption from the labor certification requirement of § 212(a)(14) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1182(a)(14) (1976), as an investor, 8 C.F.R. § 212.8(b)(4) (1976).

On June 7, 1976, the immigration judge reopened deportation proceedings to consider petitioner's application for adjustment of status. The INS stipulated that petitioner qualified as an investor. Treating his application as a request for a non-preference visa, the immigration judge denied the application, because non-preference visa numbers were unavailable for Korean nationals April 1976.

The immigration regulations contemplate that the INS will not accept, much less adjudicate, an application for adjustment of status as a non-preference immigrant unless a visa number is immediately available. Prior to its amendment effective January 1, 1977, 8 C.F.R. § 245.2(a)(2) provided for the retention of Form I-485, if the visa petition was found approvable upon initial review.3 Presently, it provides for the retention of Form I-485 until the petition is adjudicated, if approval would make a visa immediately available at the time of filing of the application.

Petitioner's Form I-485 was wrongfully retained by the INS under either version of the regulation. According to the Visa Bulletin of the Department of State, no visa number was available for non-preference visa applicants on the filing date of petitioner's application, April 23, 1976. Hence, the visa petition was not approvable upon initial review. Nor was a visa immediately available at the time petitioner filed his application. Nonetheless, petitioner's application for status as a permanent resident was accepted and retained by the INS. The INS received petitioner's $25 processing fee and stamped the application "Fee Paid." Immigration Judge James R. Smith verified acceptance of the application by initialing the Form I-485. The INS not only accepted Suh's application but also adjudicated the application: Judge Smith denied the application for adjustment of status on June 7, 1976.

We do not look with favor upon the INS violation of its own regulations. See Mendez v. Immigration and Naturalization Service, 563 F.2d 956 (9th Cir. 1977). If the INS had refused to accept petitioner's application, as it should have, in light of the unavailability of a non-preference visa number, petitioner could have obtained a labor certificate4 and filed a Form I-140 for a sixth preference visa for which visa numbers were available in April 1976 according to the Visa Bulletin of the Department of State. He would have secured adjustment of status and avoided deportation.

To leave uncorrected the INS violation of its own regulation would impose upon petitioner the undue hardship of deportation. See Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8, 94 S. Ct. 19, 38 L. Ed. 2d 7 (1973); Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 491-92 (9th Cir. 1975). In the interest of justice, we vacate the order of the BIA denying petitioner's application for adjustment of status and remand the case to the BIA with instructions to permit petitioner to apply for a sixth preference visa by filing Form I-140 and a labor certificate with the benefit of the April 23, 1976 priority date. See Yoo v. Immigration and Naturalization Service, 534 F.2d 1325, 1329 (9th Cir. 1976).

VACATED AND REMANDED.