KO

                                                            Interim Decision #2500




                                   MATTER OF KO
                            In Deportation Proceedings
                                      A-20548879
                        Decided by Board June .17, 1976
(1) Operations Instruction 245.4(a)(6) which provides that a case will be held in abeyance
  where the sole basis for applicant's ineligibility for relief under section 245 of the
  Immigration and Nationality Act is the unavailability of a visa number occurring
  subsequent to the filing of the application is not applicable to a case where respondent's
  application for adjustment of status was denied for lack of a valid labor certification,
  because in such instance, the respondent's ineligibility for section 245 relief was based
  on a reason other than the unavailability of a visa number which had occurred subsequent to the filing of the application.
(2) Matter of Ho, 

, distinguished.
CHARGE:
                                                     ,
  Order: Act of 1952—Section 241(a)(2)-18 U.S.C. 1251(a)(2)1 7-Nonimmigrantremained longer
ON BEHALF OF RESPONDENT: John B. Bartos t Esquire
                        4676 Admiralty Way, Suite 632
                        Marina Del Rey, CA 90291


   In a decision dated August 18, 1975, the immigration judge found the
respondent deportable, denied his application for adjustment of status
under section 245 of the Immigration and Nationality Act, and granted
the respondent the privilege of voluntary departure. The respondent
has appealed from the denial of his application for adjustment of status.
The appeal will be dismissed.
   The respondent is a native and citizen of China who entered the
United States in 1971 as a nonimmigrant student. The respondent has
conceded deportability as a nonimmigrant who has remained beyond the
authorized length of his stay. The only issues on appeal involve the
denial of the respondent's application for section 245 relief.
   The respondent initially submitted his application for adjustment of
status to the district director, prior to the commencement of these
proceedings. At that time, the respondent sought section 245 relief as a
nonpreference immigrant claiming exemption from the labor certification requirements of section 212(a)(14) as an investor ' within the
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Interim Decision #2500

eontemplatiou of 8 CFR 212.8 (b)(4). The district director denied the
respondent's section 245 application, finding that the respondent had
not established his claim to investor status. The district director based
his decision on the respondent's lack of training in the field in which he
allegedly invested, and the fact that the respondent appears to be a
minority shareholder in the business. The respondent evidently filed a
motion to reconsider the district director. However, prior to the filing of
that motion the district director had issued the order to show cause in
this case, thus lodging jurisdiction over the section 245 application with
the immigration judge. See 8 CFR 245.2(a)(1).
   At his hearing the respondent renewed his application for section 245
relief before the immigration judge. The immigration judge denied the
application on the ground that a visa was not then available to the
respondent as a nonpreference immigrant. See Department of State
bulletin on 'the Availability of Immigrant Visa Numbers for August
1975. A review of recent Department of State bulletins on the Availability of Immigrant Visa Numbers indicates that visas have been unavailable to nonpreference aliens from China since June of 1975.
   In his brie:' on appeal, counsel for the respondent implicitly acknowledges the fact that a visa is presently unavailable to the respondent as a
nonpreference immigrant. Counsel, however, seeks a remand on the
basis of the Service policy expressed in Operations Instruction 245.4
(a)(6). In his brief, counsel also requests that the district director be
required to process the respondent's application for a labor certification
as a professional (Form MA7-50A). While it is not entirely clear from
the record, it appears that the respondent desires to be classified as a
preference immigrant under section 203(a)(3) of the Act.
  The Operations Instruction relied upon by the respondent basically
provides for the holding in abeyance of any case in which an alien has
submitted aflection 245 application at a time when a visa number was
available to him, but in which he is precluded from receiving that relief
solely because a visa number is not available at the time the processing
of the case ,is completed. The respondent•contends that this Operations
Instruction has application in this ease because he submitted his section
246 application to the District Director at a time when a nonpreference
number was available.to him. We find, however, that the Operations
Instruction has no bearing on this case because there is another basis for
denial of the respondent's application for adjustment of status. This
case, therefore, , differs from Matter of Ho, 15 I. & N. Dee.
692, also decided today, because the respondent's ineligibility for
section 245 relief is not solely related to the unavailability of an immigrant visa number.
  In order to be eligible for adjustment of status the respondent must
meet the labor certification requirements of section 212(a)(14) of the

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Act. The respondent presently contends that he meets this requirement
as an investor. The district director's decision denying the respondent's
application for adjustment of status, however, calls into question many
aspects of the respondent's investment. That decision appears to have
been correct. For example, the respondent has not shown that he has
assumed substantial responsibility for the direction and control of the
enterprise as is required to qualify for the investor exemption. See
Matter of Yang, 

 (R.C. 1974); Matter of Ko,

 (Dep. Assoc. Commr. 1973). The respondent has therefore failed to meet the burden of proof requirements
imposed by Matter of Ahmad, 15 L & N. Dec. 81 (BIA 1974). In
addition, the respondent has not shown that he is eligible for adjustment
of status as a preference immigrant under section 203(a)(3) or (a)(6). We.
note that the pendency of these deportation proceedings does not bar
the respondent from attempting to establish such eligibility by seeking
approval of a petition filed under 8 CFR Part 204.
   The respondent is not presently eligible for adjustment of status
under section 245. On this record, it has not shown that he meets the
labor certification requirements of section 212(a)(14) of the Act. Furthermore, as has been indicated, a visa is not presently available to the
respondent as a nonpreference immigrant. The decision of the immigration judge was correct. The appeal will be dismissed.
   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 31 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 respondent shall be deported as proVided in the
immigration judge's order.




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