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May 11, 1981

Gyan Singh CHAVAN, Kundan Singh and Rajender Singh Kunver, Petitioners,
David T. DRYSDALE, Officer-in-Charge of the Immigration and Naturalization Service at Albany, New York, and Benedict J. Ferro, District Director of the Immigration and Naturalization Service at Buffalo, New York, Respondents

The opinion of the court was delivered by: MCCURN


This is an action for a writ of habeas corpus, brought pursuant to 8 U.S.C. § 1105a(9) and 28 U.S.C. Chapter 153, in which the petitioners are challenging the legality of deportation orders issued by the Immigration and Naturalization Service (hereinafter "INS").


 On May 21, 1976, India Hotels, Inc., of Schenectady, New York, filed applications with the INS seeking nonimmigrant L-1 intracompany transfer visas on behalf of the petitioners. *fn1" The applications specified that petitioners were needed to serve as specialty cooks in a Schenectady restaurant for a period of twelve months from July 1976 to July 1977. Mr. S. J. Advani, an India Hotel's official, submitted an affidavit in support of the applications in which he stated that the petitioners' services would be needed for only a limited period of time.

 The applications were approved by INS on July 23, 1976, for a period of one year to July 23, 1977. Petitioners were admitted to the United States as nonimmigrant aliens on August 22, 1976, and began working at the restaurant which served Indian specialty dishes.

 On July 23, 1977, petitioners applied for and were granted extensions of temporary stay in the United States to July 23, 1978, on the grounds that the restaurant was prospering because of their cooking skills, that the restaurant was having difficulty replacing them and that the parent company in India had agreed to leave them on loan for another year.

 On June 21, 1978, petitioners applied for an additional extension on the grounds that the restaurant could not stay in business without them. The INS granted the additional extension of temporary stay to July 23, 1979, but apparently informed petitioners that this would be the last extension. Allegedly as a result of receiving this information, petitioners' employer applied for labor certification on their behalf with the United States Department of Labor pursuant to 8 U.S.C. § 1182(a)(14). *fn2" The certification was issued on October 9, 1979.

 Petitioners applied for an additional one-year extension on June 23, 1979, again on the ground that the business could not continue without them. The INS denied the applications on October 31, 1979. In denying each of the three petitioners' requests, the INS indicated that:

The legislative history of the above provision discloses that the stay under an "L" visa should not exceed 3 years.
The application is hereby denied on the grounds that you have been in the United States for the maximum period contemplated by the statute, you have failed to establish that you intend to depart from the United States within a definite time, and you have failed to establish that the purpose for which you were admitted has not been accomplished and that your requested extension is not merely an attempt to prolong your stay indefinitely.

 On November 29, 1979, petitioners filed a motion to reconsider the denial of the L-1 extensions by the Albany officials of the INS. Petitioners argued that the INS had erred in interpreting the L-1 statute and legislative history as intending to limit admission under L-1 status to a three-year period. In addition, petitioners claimed that because the restaurant was a fairly new enterprise needing the services of the petitioners to keep going, the extensions should be granted. An order was entered on January 18, 1980, dismissing the motion to reconsider. The decision was based primarily on a finding that the request for extension was "merely a means of allowing the applicant to remain in the United States and continue his employment which is permanent in nature until such time as a sixth preference visa number becomes available." This finding was apparently grounded in large part on the fact that the petitioners' employer had sought labor certification for them on the basis of job offers for permanent employment as specialty cooks.

 By letter of January 24, 1980, the INS advised the petitioners that they should depart from the United States by February 11, 1980. Petitioners' counsel sought postponement of further proceedings until such time as visa numbers became available. Nonetheless deportation proceedings were instituted on February 27, 1980, pursuant to 8 U.S.C. § 1252, by issuance of orders to show cause, notice of hearing and warrant for arrest of aliens on the grounds that petitioners were aliens who had remained in the United States beyond the time period permitted.

 A deportation hearing was held on April 15, 1980, before the Honorable Gordon Sacks, Immigration Judge. A finding was made that the petitioners were technically deportable, and an order was entered allowing voluntary departure by July 15, 1980, in lieu of deportation.

 On July 9, 1980, petitioners sought certification to the Regional Commissioner concerning the denial of their applications for temporary extensions of their L-1 status. INS refused to certify the cases on July 18, 1980. Notice of departure arrangements for July 31, 1980, were served on petitioners on July 22, 1980. On ...

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