MATTER OF ZANG
In Visa Petition Proceedings
A-13759842
Decided by Acting District Director May 1, 1969
Since a visa. petition to classify an alien as a preference immigrant under
section 208 (a) (6). of the Immigration and Nationality Act, as amended,
must be supported by a certification by the Secretary of Labor, a visa petition to accord beneficiary sixth preference classification as a licensed
contractor or construction superintendent is denied in the absence of a
supporting labor certification notwithstanding beneficiary, as an investor,
might be exempt from the need for such certification (8 CFR 212.8(b) (4) )
if applying for immigrant status as a nonpreference immigrant.
ON BEHALF OF PETITIONER: Ben Shapero, Esquire
1500 First National Building
Detroit, Michigan
The petition seeks to classify the beneficiary as a preference
immigrant under section 203 (a) (6) of the Immigration and Nationality Act, as amended, for employment as a licensed contractor or construction superintendent.
The beneficiary is a citizen of Israel, born February 21, 1944,
in Israel. He is an equal partner in a general contracting company and is primarily engaged in the field operation of this firm.
He intends to continue in his present calling.
Section 203 (a) (6) of the Act, as amended, provides for the
availability of visas to qualified immigrants who are 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.
Section 203 (a) (8) of the Act provides, inter alia, that no immigrant visa shall be issued to an immigrant with a preference
under section 202 (a) 05 of the Act until the consular officer is in
receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212 (a) (14) of the Act. The latter section also specifically makes sixth preference beneficiaries
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Interim Decision #1980
subject to such a determination by the Secretary of Labor. The
pertinent portion of the implementing regulation, 8 CFR
204.1 (d), provides that a petition for sixth preference classification must be accompanied by a certification under section
212(a) (14), supra.
On September 1, 1967, the beneficiary entered into an equal
partnership agreement for the establishment of an independeng
general contracting firm. His initial cash investment was one
thousand dollars, and his partner invested five thousand dollars.
Petitioner, through counsel, proposes that the partnership agreement was predicated on the basis of the beneficiary's knowledge
of the construction business and his licensure by the State of
Michigan as a building contractor; that his knowledge, experience
and licensure, coupled with the cash investment of one thousand
dollars, was at least quivalent to his petitioner's cash investment.
Two financial statements submitted in support of the petition reflect that the present assets of the petitioning company are
$27,985.82; an increase of more than one hundred per cent during
the period from January 1988 to November 1968. From the evidence presented, it is considered that the business is enjoying
some degree of success when considered by the standards normally applied to a small business venture.
Petitioner, at Service direction, applied to the Bureau of Employment Seeurity, Department of Labor, for the certification required by section 212 (a) (14) of the Act, as amended. Tinder date
of July 9, 1968, the Regional Administrator, Bureau of Employment Security, Chicago, Illinois, rejected the application for alien
employment certification on the following grounds:
We note in item 20 of ES 575B, that the alien will be paid a share of the
profits rather than a regular salary. It appears from the application that
Mr. Zang will be a partner in the business rather than an employee of the
firm. Persons who will be self-employed in the United States are not eligible
for alien employment certification. Consequently, we are returning your request without action by the Department of Labor.
The Regional Administrator's remarks are interpreted to indicate that the beneficiary is either being considered as an investor
and not required a certification under 8 CFR 212.8(b), or is considered to be within 8 CFR 212.8 (a) as an alien who will not engage in skilled or unskilled labor in the United States. Upon careful consideration of the cited regulations, it is apparent that the
beneficiary will in fact engage in skilled labor in the United
States and cannotte exempted certification as one who will not so
engage hhiself. Consideration is therefore directed to exemption
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Interim Decision #1980
from labor certification as an investor within 8 CFR 212.8(b) (4).
This regulation defines an investor as:
an alien who will engage in a commercial or agricultural enterprise in which
he had invested or is actively in the process of investing a substantial
amount of capital.
Webster's New World Dictionary, College Edition, defines capital in the pertinent parts as:
—wealth (money or property) owned or used in business by a person, corporation etc., an accumulated stock of such wealth; wealth, in whatever form,
used or capable of being used to produce more wealth; hence, any source of
profit or benefit; assets; resources, as energy and education are his only
capitaL
The same authority defines property when considered in
connection with capital as:
the right to possess, use and dispose of something; ownership; as property
in land. a thing or things owned; holdings or possessions collectively; especially, a land or real estate owned.—any trait or attribute proper to a thing,
or, formerly, to a person.—something regarded as being possessed by, or at
the disposal, of a person or group of persons:
Applying these definitions to the instant case, it may be considered that the beneficiary has invested and is actively investing
capital, both in the form of cash and property, in a commercial
enterprise in which he is presently engaged and in which he intends to continue. Although the beneficiary has only invested
03,992.60 on the basis of the most recent financial statement, the nature of the construction industry is such that the
fixed assets of a particular company is not a true reflection of its
worth. No - large inventory of equipment and goods is required;
the physical plant need be neither complex nor extensive and with
the exception of heavy equipment, which can be leased or subcontracted, most of the employees will possess their own tools and
light equipment; therefore, though a small investment in the light
of heavy industry and the world of high finance, by small business standards this investment is considered to be substantial.
In considering whether a petition in behalf of the equal partner
of the petitioning firm is proper, we find that the Matter of M—,
8 I. & N. Dec. 24, holds the sole owner of the petitioning corporation to be properly considered the beneficiary of a preference immigrant visa petition. The language of 8 CFR 204.1(d) appears
consistent with this finding and provides for the filing of a visa
petition by a person, firm, or organization desiring and intending
to employ within the United States an alien entitled to classification as a preference immigrant under section 203 (a) (6) of the
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Interim Decision #1980
Act, as amended. There is no question that the petitioner when
considered as a firm or organization does desire and intend to employ the beneficiary in the stated capacity.
The beneficiary may be considered qualified as an investor
within the meaning of 8 CFR 212.8 (b) (4) and, as such, exempt
from the need for a labor certification if he were seeking admission as a nonpreference or special immigrant as defined in section
101 (a) (27) (A) of the Act or seeking adjustment of status to that
of a permanent resident as a nonpreference immigrant. However,
an alien investor who desires a sixth preference classification is
not seeking that classification in the capacity of an investor. Instead, he is seeking it in the capacity of an employee and, as previously stated, such classification may only be accorded, as a matter of law, if the petition is supported by a labor certification.
The Department of Labor has declined to issue the required certification on the basis that the alien will be self employed and not
-
eligible for consideration of alien employment certification. That
Department's decision is not, of course, subject to review by this
Service.
When this case was first considered, nonpreference visa numbers were unavailable and the alien beneficiary did not qualify as
a special immigrant. Since nonpreference visa numbers are presently available and the beneficiary may qualify as an investor,
consideration under this classification will be accorded to the beneficiary in the event that an appropriate application is filed.
In view of the requirement that a petition to classify a beneficiary as a preference immigrant under section 203 (a) (6) of the
Act must be supported by a certification by the Secretary of
Labor, notwithstanding the fact that the beneficiary might be exempt from the need for such certification if applying for immigrant status as a nonpreference or special immigrant, and the petitioner has not presented such a certification, the petition must
be denied for lack of a valid unexpired labor certification. Pursuant to 8 CFR 204.1(d) (4), no appeal shall lie from this decision.
It is ordered that the petition be denied for lack of a certification issued pursuant to section 212 (a) (14) of the Act by the
Secretary of Labor.
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