Interim Decision #2513
' MATTER OF YARDEN
'In Section 245 Proceedings
A-20890467
Decided by Regional Commissioner August 6, .1976
In the absence of unusual'or outstanding equities, an application for adjustment of status
under section 245 of the Immigration and Nationality Act wfil be denied as a matter of
discretion where the labor certification supporting such application, or eligibility for
exemption therefrom, was predicated on experience and/or income derived from employment held by applicant in violation of the immigration laws.
ON BEHALF OF APPLICANT: David G. Stern, Esquire
Choate, Hall & Stewart-
28 State Street
Boston, Massachusetts 02109
This matter is before the Regional Commissioner on certification
pursuant to 8 CFR 103.4. The district director denied the application for
adjustment of status under Section 245 of the Immigration and Nationality Act, as amended, on the ground that the alien failed to
establish that he is exempt from the requirements of Section 212(a)(14)
of the Act; and further, he has not established that his application
merits favorable exercise of discretion by the Attorney General.
The applicant, a 29 year old-native and citizen of Israel, was admitted
to the United States on March 3, 1968, until September 2, 1968, as a
nonimmigrant visitor for pleasure. He had neither requested nor received any extension of his authorized stay. In April., 1968, he accepted
employment as an insurance salesman. He was subsequently employed
as an automobile salesman from August, 1968, to February, 1970. He
then accepted employment with the Y & D Auto Body, Inc., a company
he purchased October 21, 1970, and which he has managed since that
date. He initially applied for adjustment of status under Section 245 of
the Act on June 29, 1973, as a nonpreference immigrant claiming
exemption from the provisions of Section 212(a)(14) on the basis of his
investment in the above-named company. The application was denied
September 13, 1973, because a nonpreference visa number was not
available at that time. On September 28, 1972, Y & D Auto Body, Inc.,
made -application to the Department of Labor for the certification re-
729
Interim Decision #2513
quired by Section 212(a)(14) requesting the applicant's services as an
auto body man. Such application was denied February 11, 1974, on a
finding that Ile wage offer of $6 per hour was below the prevailing wage
rate of $7 per hour and that qualified resident workers were available.
The instant application was filed June 6, 1974. Exemption from Section 212(a)(14) under the provisions of 8 CFR 212.8(b)(4) as an investor
is again claimed. In support of his application, there have been submitted Form I-526, a bill of sale dated October 21, 1970, in the amount of
$4,000 for the purchase of Y & D Auto Body, the Articles of Organization of Y & D Auto Body, Inc., cancelled checks, income tax returns, a
property mortgage, bank letters, a lease agreement, and a Notice of
Change of Corporate Officers. The Articles of Organization show that the
company was incorporated for the purpose of "general auto and truck
body repair and sale of damaged body automobiles and trucks." It is
indicated that there are 5,000 shares of common stock with a par value of
$2 per share. Joseph Yarden, the applicant, and Shifra. Yarden, his wife,
since divorced, are shown as the only officers of the company. Under
capital investments on Form 1-526, applicant's investment is shown as:
cash, $3,000; tools and machinery, $18,000; and inventory of $2,000.
In his decision, the district director states that the bill of sale indicates a payment of $4,000 was made for the purchase of the company;
that further investment consisted of the purchase of equipment and
material required to operate the business, and that the applicant failed
to establish that he had at least one year of experience in any managerial capacity. It was further concluded that the money invested in the
business was earned through the alien's illegal employment in the
United States, and that the application did not warrant the favorable
exercise of discretion by the Attorney General.
Section 245 of the Act states: "The status of an alien other than an
alien crewman who was inspected and admitted or paroled into the
United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence if (1) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an
immigrant visa and is admissible to the United States for permanent
residence, and, (3) an immigrant visa is immediately available to him at
the time his application is approved." (Underscoring supplied).
Section 2:.2(a) of the Act lists the classes of aliens who shall be
ineligible to receive visas and shall be excluded from admission into the
United States. Section 212(a)(14) provides for the exclusion of 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 Attorney General that
(A) there are not sufficient workers in the United States who are able,
730
Interim Decision #2513
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 . . ."
This section was incorporated into the Act by the Act of October 3, 1965,
79 Stat. 911, to safeguard the livelihood of workers lawfully present in
the United States. H. Rep. 745, 89th Congress, 1st Session (1965).
Regulations to implement the amended statute provide that certain
aliens are not considered to be within the purview of Section 212(a)(14).
The applicant is seeking to establish that he qualified for the exemption
from labor certigication contained in 8 CFR 212.8(b)(4) which states as
follows: "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 one year's experience or training qualify ,
inghmtoeasucnrpi."
In his brief submitted pursuant to the notice of certification, counsel
questions the district director's decision on several points, which we
shall consider seriatim. First, it is stated that: "The decision makes
many legislative and judicial assumptions, including the assumption that
the Petitioner's self - employment in the United States constitutes unauthorized employment. Neither regulation nor judicial decisions are cited
in support of that position."
A nonimmigrant in the United States in a class defined in Section
101(a)(15)(B) of the Immigration and Nationality Act as ,a temporary
visitor for pleasure, may not engage in any employment. 8 CFR
214.1(c). Applicant has been employed in the United States since April,
1958. Such employment is illegal. Wei v. Robinson, 246 F.2d 729 (C. A.
1957), cert. den.
355 U.S. 879 (1957); Matter of S.
8 I. & N. Dec. 574
(1960); Matter of Wong, , 11I. & N. Dec. 704 (1966); Matter of Martinez
and Londmito, 13 L & N. Dec_ 483 (1970) S. Rep. 1137, 82d Cong., 2d Sess.
(1952).
Exception is next taken to the statement that the applicant has failed
to establish he possesses the one year of experience in a managerial
capacity as required by the regulation. We agree with counsel that the
record establishes applicant's employment in this capacity over the last
five to six years. We do not believe, however, that it is proper in this
case to grant an exemption from the requirements of Section 212(a)(14)
by virtue of the applicant's experience gained or funds derived from
employment while unlawfully in the United States.
It is stated that the decision does not mention that the petitioner has
had as many as eight employees, and when interviewed, was employing
731
Interim Decision #2513
four workers. This is not substantiated in the record nor is the contention that sa:aries paid by applicant have averaged over $40,000 per
year. The company's income tax returns for 1972 and 1973; the only
evidence present, show salaries paid for those years as $29,850 and
$18,735, respectively.
It is contended that, in addition to the initial investment of $4,000,
amounts in excess of $10,000 have also been expended for purchase of
capital goods. We have only the applicant's statement in this regard
since it is impossible to determine from the checks submitted precisely
what they were used to purchase. These checks were written between
February, 1')72, and May, 1974. Many of the later checks are for uniform amounts to banks such as would be used to pay a loan. The balance
could have been written in the normal day-to-day transactions of a
business or represent re-investment of money earned. Counsel states
that applicant has formed a Massachusetts corporation and made an
additional investment of $5,000 while negotiating for distribution rights
for automobile paint. To support his claim, there is a copy of Articles of
Organization dated April 9, 1975, for Northeast Auto Paint Distributors, Inc., showing 2,000 shares of stock with a par value of $1 per
share listing the applicant as president and a bank 'statement in the
name of the -company showing a balance of $4,450. With regard to
applicant's real estate holdings, we will abide by the finding in the
Matter of Heitland, 14 I. & N. Dee_ 589 (1974), which finds that land
holdings and savings bank accounts do not qualify as investments within
the contemplation of the regulation. An alien who asserts that he qualifies
for the "investor" exemption for labor certification has the burden of
establishing his claim through unambiguous proof and doubt should be
resolved against the "investor" claimant. Matter of Ahmad, 15 I. & N.
Dec. 81, (1974). In the instant case, it is determined that the applicant has
failed to establish that he qualifies under 8 CPR 212.8(b)(4) as one who
has invested or is actively in the process of investing capital totaling at
least $10,000.
Additionaly, an alien seeking discretionary relief under Section 245
of the Act bears the burden of establishing that he is statutorily eligible
for such relief and that discretion should be exercised in his behalf.
Matter of Arai, 13 I. & N. Dee. 494, (1970). The applicable statute does
not contemplate that all aliens who meet the required legal standards
will be granted adjustment of status to that of a permanent resident
since the grant of an application for adjustment of status is a matter of
discretion and of administrative grace, not mere eligibility. Matter of
Ortiz-Prieto;
11 I. & N. Dec. 317, (1965). Thus, assuming arguendo that
the applicant is exempt from the labor certification of Section 212(a)(14),
his application is denied as a matter of discretion. He -has- been in
violation of the immigration laws of the United States since April, 1968.
732
Interim Decision #2513
His disobedience of our laws commenced only one month after he arrived in this country as a visitor. His total work experience was acquired while he was illegally in the United States—in violation of his
status as a visitor for pleasure and thus not permitted to be employed.
He has no unusual or outstanding equities. In the absence of unusual or
outstanding equities, an alien will not as a matter of administrative
discretion be granted permanent resident status on the basis of a labor
certification issued under Section 212(a)(14) of the Act or exemption
therefrom, which is predicated on employment while unlawfully in the
United States.
It is ordered that the decision of the District Director be and same is
hereby affirmed.
733
