Interim Decision #2335
MATTER OF YANG
In Section 245 Proceedings ,
A-195241450
Decided by Regional Commissioner December 4, 1974
The applicant for adjustment of status under section 245 of the Immigration and Nstionality Act sought exemption from the labor certification requirement of section
212(a)(14) of the Act as an investor, pursuant to 8 CFR 212.8(b)(4). The investor status
was claimed on the basis of applicant's purchase of $10,000 in shares of common stock of
his employer's company (less than 1/10 of 1% of the outstanding shares). The application
is denied for the reasons that the $10,000 investment in the company's stock had no
bearing on any risk of the success or failure of the enterprise; it did not expand job
opportunities for workers in this country; and because applicant, who was employed as a
technician by the corporation, as one of 1,500 employees, was simply entering the job
market without the required labor certification.
ON BEHALF OF APPLICANT: Joseph F. O'Neil, Esquire
100 State Street
Boston, Massachusetts 02109
This matter is before the regional commissioner on certification by the
district director who on July 24, 1974 denied the application on the
ground that the applicant is subject to the requirement of section
212(a)(14) of the Immigration and Nationality Act, as amended, does not
have the labor certification for which that section• provides, and is
therefore inadmissible to the United States for permanent residence.
Section 212(a)(14) provides, in pertinent part, as follows and makes the .
following aliens inadmissible to the United States:
(14) Aliens seeking to enter the United States, for the purpose of performing skilled or
unskilled labor, unless the Secretary of Labor has determined and certified to the
Secretary of State and to the Attordey General that (A) there are not sufficient workers
in the United States who are able, willing, qualified, and available at the time of
application for a visa and admission to the United States and at the place to which the
alien is destined to perform such skilled or unskilled labor, and (B) the employment of
such aliens will not adversely affect the wages and working conditions of the workers in
the United States similarly employed
Federal Regulations provide for the exemption of certain classes of
aliens from the labor certification mentioned above. One such class is
defined in 8 CFR 212.8(b)(4) as follows:
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(4) an alien who establishes on Form 1-526 that he is seeking to enter the United States
for the purpose of engaging in a commercial or agricultural enterprise in which he has
invested, or is actively in the process of investing, capital totaling at least $10,000, and
who establishes that he has had at least 1 year's experience or training qualifying him to
engage in such enterprise.
The applicant claims to qualify for this exemption from labor certification requirements as an "investor."
He is a 44-•ear-old native and citizen of China who was admitted to
the United States as a nonimmigrant student on February 20, 1969.
Upon completion of his course of study in electronics in January of 1971
he was granted permission to engage in employment as practical training as a senior television technician at a Boston department store. On
January 14, 1972 the Secretary of Labor, through his designated agents,
denied an application for a labor certification filed by the department
store ill behalf of the applicant and dismissed an ensuing appeal therefrom. In dismissing the appeal, the Department of Labor said, "Information made, available to this office indicates a considerable number of
U.S. workers are available possessing the job classification in question."
On April 26, 1972, he applied for status as a permanent resident
claiming exemption from the labor certification requirement stating that
he would be a full time student for two years studying electronic engineering technology and that his wife would support him. His wife, a
native and citizen of El Salvador, had already completed her studies
here and had engaged in employment for eighteen months as practical
training. She had also been denied a labor certification by the Department of Labor and had been granted a period of voluntary departure
from the Urrted States pending completion of her husband's studies.
The applicant's request for permanent residence was denied on
November 15, 1972, and he was instructed to depart from the United
States by March 1, 1973.
He did not depart, but in June of 1973 accepted unauthorized employment as an electronics technician with Transitron Electronics Corporation of Wakefield, Massachusetts. On June 18, 1974, the U. S.
Department of Labor denied an application for a labor certification
submitted by Transitron for the applicant's employment as an electronics technician because qualified resident workers were available
Thereafter on June 26, 1974 the applicant purchased $10,000 worth of
the outstanding , common stock of his employer, the Transitron Electronics Corporation," and filed the instant application two days later
seeking permanent resident status as an investor exempt from the labor
certification under 8 CFR 212.8(b)(4).
In denying the application the district director cited the Matter of Ko,
14 I. & N. Dec. 349 (1973), which held that "engaging" in an enterprise
within the purview of 8 CFR 212.8(b)(4) contemplates full -time en-
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gagement to an extent which demonstrates an assumption of risk and
responsibility for the direction and control of the enterprise. The district director concluded that the applicant, a salaried employee of the
corporation, assumes no risk and responsibility for the direction and
control of the enterprise. He further found that the mere purchasing of
$10,000 worth of common stock "over the counter" did not qualify the
applicant for "investor" status as contemplated by the Federal Regulations.
Counsel, by brief on appeal, has attacked the district director's decision and asserts that the applicant has assumed a very real risk by the
investment of $10,067.50 in Transitron Corporation. Counsel further
maintains that the district director erred when he concluded that the
applicant has assumed no responsibility for the direction and control of
the enterprise because, as a shareholder, the applicant is entitled to
perform such functions as voting at shareholder meetings, and the
giving of written consents with respect to: (1) election and removal of
officers; (2) adoption, amendment, and repeal of By-Laws; (3) shareholder resolutions, including ratification of Board of Directors' action; (4)
extraordinary corporate matters including reorganization, merger, and
disposition of assets.
Obviously, investment in common stocks involves an element of risk.
However, we find in the case at hand that the risk relates entirely to the
personal investment of the applicant. His $10,000 has no bearing on any
risk to the success or failure of the "enterprise". His job as one of 1,500
employees of the firm does not rise or fall on his investment. It depends'
entirely on managerial considerations, whether he performs as required
by his employer. To say that his ownership of less than one-tenth of one
percent of the outstanding common shares of the corporation places the
applicant in a position of responsibility for the direction and control of
,
the enterprise is, in our opinion, pure fantasy. .
Counsel cites the Matter of Heitland, 14 I. & N. Dec. 563 (1974), and
paraphrases a portion of that decision as "the investment must tend to
expand job opportunities and thus offset any adverse impact which, the
alien's employment may have on the market for jobs, . . ." He urges
that the applicant's investment of $10,067.50 will have the effect of
tending to expand job opportunities for American workers. We reject
this position as erroneous on its face and factually indefensible.
In Heitland the Board of Immigration Appeals also said:
The regulation would be inconsistent with the statute were it to be construed to grant a
labor certification exemption to an alien with an idle investment of a modest magnitude
who might then be forced to enter the normal labor market in order to supplement the
income from the investment. Rather than permitting an alien to usurp an existing job
opportunity, the nature of the investment must be such that it tends to guard against
the possibility that the alien wal compete with A77167*(.06 labor for available a/gilled or
unskilled positions. (Emphasis supplied).
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In the matter at hand, the applicant's employment as an electronics
technician and his investment in his employer's corporation are unrelated to each other as far as the employer is concerned. His ownership of
company stock does not substantially improve his job security which
does not ride on his personal investment in the corporate shares of his
publicly owned employing corporation.
Section 212(a)(14) was incorporated in the Act as a measure designed
to protect the livelihood of workers lawfully present within the United
States. It was intended to prevent "an influx of aliens entering the
United States for the purpose of performing skilled or unskilled labor
where the economy of individual localities is not capable of absorbing
them at the t.me they desire to enter this country." Matter of Heitland,
supra.
In Heitland the BIA further noted:
It is therefore necessary for us to adopt a test concerning substantial investments which
,
comports with the congressional policy contained in section 212(a)(14). The investment
must be more than a mere conduit by which the alien seeks to enter the skilled or
isnskilled labor market. Consequently, the investment either must tend to expand job
opportunities and thus offset any adverse impact which the alien's employment may
have on the market for Jobs, or must be of an amount adequate to insure, with sufhctent
certainty that the alien's primary function with, respect to the investment, and with
respect .to the economy, will not be as a skilled or unskilled laborer. (Emphasis
supplied).
The present language of 8 CFR 212.8(b)(4), previously quoted, has
been in effect since February 12, 1973 (see 38 F. R. 1379, January 12,
1973). Prior to the effective date of that amendment, 8 CFR 212.8(b)(4)
declared as not being within the purview of section 212(a)(14) and
exempt from the labor certification "an alien who will engage in a
commercial Or agricultural enterprise in which he has invested or is
actively in the process of investing a substantial amount of capital."
In the paragraph reproduced above from Matter of Heitland, the BIA
set forth certain criteria for determining whether an investment was a
"substantial" one as that term was used in 8 CPR 212.8(b)(4) prior to its
amendment. Nevertheless, it is our view that the amended language of
that regulation must still "comport with the congressional policy contained in' section 212(a)(14)", as the BIA has stated in that paragraph.
Accordingly, we conclude that the criteria established by the BLA. are
equally applicable to cases of aliens seeking to qualify as "investors" for
an exemption from the labor certification requirement under the present
language of that regulation.
The applicant in the matter before us fails the test on all counts. He
has entered he job market as a skilled laborer notwithstanding the
finding of the U. S. Department of Labor that qualified residents are
available to 1111 the position he now holds. We see his investment in
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Transitron as a direct effort to offset the protective provisions of section
212(a)(14). His investment is insufficient to provide financial support
without his entering the labor market as a skilled or unskilled laborer,
which he has done, in order to supplement any income which his investment might produce.
We conclude that an alien who competes with United States citizens
and lawful resident aliens for positions in the skilled or unskilled labor
market cannot acquire an exemption from the labor certification requirement of section 212(a)(14) merely by purchasing over $10,000
worth of the outstanding common stock of the employing corporation.
Based upon a thorough consideration of all the facts before us including representations made on certification, we find that the applicant
does not qualify for exemption from labor certification contemplated by
8 CFR 212.8(b)(4). Accordingly the district director's decision will be
affirmed.
It is ordered that the denial of the application be and is hereby
affirmed.
151.
