JO

                                                          Interim Decision #2412




                                  MATTER OF Jo

                          In Deportation Proceedings

                                    A-19747887
                                    A-19747886
                        Decided by Board July 92, 1975

Application made during the course of deportation proceedings for adjustment of status to
 lawful permanent residence under section 245 of the Immigration and Nationality Act,
 as amended, as a nonpreference immigrant based on a claim to exemption from the labor
 certification requirement under the provisions of 8 CFR 212.8(b)(4) as an investor, may
 not be regarded as a renewal of an earlier application but must be regarded as a new
 application for adjustment of status where the earlier application was denied and the
 present claim to investor status is predicated on a new business enterprise.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-.
                         rernained longer (both respondents)
ON BEHALF OF RESPONDENTS:                            ON BEHALF OF SERVICE:
  Kie-Young Shim, Esquire                             Olga M. Springer
  77 W. Washington Street                              Trial Attorney
  Chicago, Illinois 60602


  This is an appeal from a decision of an immigration judge, dated July
81, 1974, finding the respondents deportable, denying their applications
for adjustment of status under section 245 of the Immigration and
Nationality Act, and granting them the privilege of voluntary departure. The appeal will be dismissed.
   The respondents, husband and wife, are aliens who are natives and
citizens of Korea. They both entered the United States on June 10, 1972.
The male respondent was authorized to remain until July 10, 1973 as a ,
                                                                      admitted as a noimgratsude.Thfmlpontwas
nonimmigrant visitor authorized to remain until December 10, 1972.
Both respondents have remained beyond the periods authorized. They
have admitted the factual allegations of the order to show cause and
have conceded deportability.
  The male respondent seeks adjustment of status to lawful permanent
resident under section 245 of the Act. He seeks such status as a nonpreference immigrant who is exempt from the requirement of obtaining
                                          401
Interim Decision #2412

a labor certification as an "investor". See 8 CFR 212.8(b)(4). The female
respondent's status is. dependent on her husband's eligibility.
   The male respondent originally submitted an application for adjustment of status to the district director on October 17, 1972. At the time of
the submission, nonpreference visa numbers for Korea were current.
His claim to exemption from the labor certification requirement of
section 212(a)(14) of the Act was predicated on his investment in a
partnership which imported and distributed foodstuffs. On August 30,
1973, the district director denied the male respondent's application on
the ground that he was not entitled to investor status because the
partnership in which he was engaged had been dissolved in December of
1972. The male respondent concedes that the district director's conclusion was correct.
   On November 1, 1973, the male respondent submitted a Form 1-526,
Request for Determination That Prospective Immigrant Is An Investor. This form indicates that the respondent had invested in a new
business and was apparently submitted with the intention that the
application for adjustment of status would be renewed. On February 2,
1974, counsel for the respondent submitted a motion to the district
director to reopen and reconsider the application for adjustment of
status. It does not appear from the record that any action was taken on
either of these submissions.
  An alien without a priority date who is seeking adjustment as a
nonpreference immigrant may "file" his application on Form I-485 if
visa numbers for the country of his nationality are current. See 8 CFR
245.2(a)(2). 8 CFR 245.1(g)(2) provides that the date of "filing" will
become the priority date if it is established that the nonpreference
applicant is exempt from the labor certification requirements of section
212(a)(14) of the Act. The district director denied the respondent's
application on the ground that he was not exempt from the labor
certification requirements of the Act. Accordingly, the respondent did
not establish a priority date as of October 17, 1972, the date of submission, because he did not satisfy all the requirements of S CFR 245 -
. 1(g)(2).
   We regard the respondents's present application not as a renewal of
his earlier application, but as a new application for adjustment of status
because the original application was denied and the present claim to
investor status is predicated on a new business. The earliest point in
time that the present application can be viewed as having been submitted is November 1, 1973, the date the Form 1-526 was submitted to the
district director.
   At this time the male respondent is ineligible for adjustment of status
because according to the. Visa Bulletin of the State Department for July
1975, a visa is not immediately available to him; nor has he established a

                                  402
                                                      Interim Decision #2412

priority date with respect to his present application since visas have not
been current for nonpreference Koreans since May, 1973. The decision
of the immigration judge was correct. We note that the respondents
could have submitted their application to a consular official as provided
in 8 CFR 245.2(a)(2) and, if exempt from obtaining a labor certification,
thereby have established a priority date.
   I ORDER: The appeal is dismissed.
  Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within 61 days from the date of this order or'any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration judge's order.




  Board Member Irving A. Appleman abstained from consideration of this case.
                                      403