TAKAYANAGI

                                                           Interim Decision #2472




                           MATTER OF TAKAYANAGI

                           In Deportation Proceedings
                                     A-19854263
                     Decided by Board February 12, 1976
Denial of respondent's adjustment of status based on a claim to investor exemption under
 8 CFR 212.8(b)(4) is affirmed on appeal in deportation proceedings since respondent's
 claimed investment of 310,000 is considered an attempt to circumvent the normal labor
 certification procedure where the investment is in shares of stock of a corporation which
 operates a beauty salon in which respondent had been illegally working as a hairdresser,
 for months, prior thereto; the investment followed unsuccessful attempts to obtain a
 labor certification as a hairdresser; the record shows that the investment is, at best, an
 adjunct to respondent's employment; that the stock shares are to be returned to the
 corporation upon termination of respondent's employment; that respondent has no
 co„ rul over his "investment"; and that he is, in fact, an ordinary employee competing
 with United States workers for an available position.
CHARGE:
  Order: Act of 1952.—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Remained longer,
                            nonimmigrant visitor.
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Elmer E. Poston, Esquire                              George Indelicato
 770 Kapiolani Boulevard #514                          Appellate Trial Attorney
 Honolulu, Hawaii 96813
 Jack Wasserman, Esquire
 1707 "H" Street, N.W.
 Washington, D. C. 20006


   On March 11, 1975, an immigration judge found- the respondent deportable as charged, granted him the privilege of voluntary departure,
and entered an alternate deportation order, but denied the respondent's
application for adjustment of status. The respondent has appealed from
the denial of adjustment of status. His appeal will be dismissed.
   The record relates to a single male alien, 34 years of age, a native and
citizen of Japan, who entered the United States at Honolulu, Hawaii on
April 15, 1971. He was classified as a nonimmigrant student and was
eventually authorized to remain in the United States until December 31,
1973. He has failed to depart.
   The respondent's deportability has been established by clear, convine-
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ing and unequivocal evidence. Through counsel he has also conceded his
deportability.
   Since December 31, 1973, the respondent has remained in this country illegally. Since that time he has also steadily worked in this country
as a hairdresser, again illegally. He has never had a labor certification.
Attempts to procure a labor certification for him failed.
   The respondent now seeks adjustment orstatus as an investor claiming eligibility under the provisions of 8 CFR• 212.8(b)(4). He claims to
have invested $10,000 in shares of stock of Honey of Hawaii, Ltd., a
corporation which operates a. beauty salon in which he had been working, for months, prior to the claimed investment. Except for a letter
signed by the chairman of the board of that corporation, there is no
evidence that the amount of $10,000 was actually invested. The chairman of the board, who lives in Japan (Tr. p. 4), stated in that letter that
the respondent was going to be issued a stock certificate under the
express condition "that upon termination of his employment by the
corporation for any reason whatsoever, the said shares shall be returned
to the corporation and cancelled and that he shall receive the book value
of said shares."
   We consider the respondent's stock purchase an attempt to circumvent the normal labor certification procedure. His "investment" followed unsuccessful attempts to obtain a labor certification as a hairdresser. Under the agreement with his employer his shares of stock must be
returned to the corporation upon termination of his employment.
   The investor exemption should not become a means of circumventing
the normal labor certification procedure for ordinary skilled or unskilled
laborers, Matter of Ahmad, Interim Decision No. 2316 (BIA 1974). The
nature of the investment must be such that it tends to guard against the
possibility that the alien will compete with American labor for available
skilled or uns:silled positions, Matter of Heitland, 

(BIA 1974). The record shows that the alleged purchase of shares of
stock of Honey of Hawaii, Ltd. is, at best, an adjunct to the respondent's employment; that the shares of stock are to be returned to the
corporation on the termination of his employment; that he has no control
over his "investment"; and that he is, in fact, an ordinary employee
competing with United States workers for an available position.
  There is no merit to the respondent's contention that the immigration
judge improperly considered denials of applications for a alabor certification as adverse factors. The adverse determination by the immigration judge was not based on the denial of those applications. They
merely show the sequence of the respondent's attempts to find some
way for remaining in the United States.
   We reject the respondent's contention that a denial of his application
for adjustment of status would violate the Treaty of Commerce and

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Navigation between the United States and Japan. The treaty has no
bearing on applications for permanent residence.
   ORDER: The appeal is dismissed.
  Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 80 days from the date of this order or any extension beyond that
time as may be granted by the district director, and that in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.




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