The Board of Immigration Appeals (BIA) broadened the discretion of Immigration Courts to grant continuances in removal cases where the respondent is seeking adjustment of status through an employment-based petition. In Matter of Rajah, 25 I&N Dec. 127 (BIA 2009), the BIA articulated the factors that should be considered in determining whether a respondent has established good cause to apply for adjustment of status based on a pending labor certification or employment-based immigrant petition. The decision comes after the 2nd Circuit remanded the case in Rajah v. Mukasey, 544 F.3d 499 (2d Cir. 2008) and directed the BIA to develop a standard taking into account the lengthy delays and uncertainties created during the employment-based process. The BIA expanded its holding in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) to adjustment of status cases based on an employment-based immigrant petition. The BIA held that the Immigration Court should apply the factors set out in Matter of Hashmi where there is a pending I-140 putting an emphasis on likelihood of success in the adjustment application. In cases where there is a pending labor certification, the BIA held that continuances should not ordinarily be granted based solely on a pending labor certification without additional persuasive factors such as a demonstrated imminent liklihood of adjudication or DHS support for the motion. The Chander Law Firm views the holding as positive for individuals who may be facing removal but hold positions eligible for second preference employment-based immigrant status and those who are eligible for waiver pursuant to former INA section 245(i). Links to Legal Opinion Matter of Rajah, 25 I&N Dec. 127 (BIA 2009). Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)
