HEIDARI

                                                             Interim Decision #2581




                                MATTER OF HEIDARI

                            In Deportation Proceedings
                                       A-12672733

                          Decided by Board May 4, 1977
(1) This is respondent's second motion for reconsideration of the Board's decision denying
   respondent's motion to reopen deportation proceedings in order to file an application for
   adjustment of status under section 245 of the Immigration and Nationality Act based on
   an exemption from the labor certification requirement of section 212(0(14) of the Act as
   an investor pursuant to 8 C.F.R. 212,8(3X4).
(2) Evidence submitted in support of a motion for reconsideration must establish a prima
   fade case that the respondent is eligible for the relief sought.
(3) In this motion for roennsideration, where the evidence presented in support of respondent's claim to investor status under 8 C.F.R. 212.8(b)(4) was gathered after the effective
   date of the amendment of that regulation, the evidence was required to meet the
   standards set forth in the amended regulation in order to establish a prima facie case.
  Motion denied _

CHARGE:
  Order. Act of 1952—Section 241(a)(2) f8 U.S.C. 1251(a)(2)3—Nonimrnigrant student—
                        remained longer than permitted
ON BEHALF OF RESPONDENT: John L. Hogg, Esquire
                         Hogg & Frank
                         523 West Sixth Street, Suite 509
                         Los Angeles, California 90014
BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members


   The respondent moves for reconsideration of our decision of December 3, 1976. 1 In our decision of December 3, 1976, we refused to
reconsider our decision of November 10, 1975, denying a motion to
reopen the deportation proceedings against the respondent so as to
allow him to file for adjustment of status under section 245 of the
Immigration and Nationality Act. The present motion will be denied.
   We have again reviewed the evidence before us at the time of our
    This is the fourth time this case has been before us, and the third time since we
afrumed the immigration judge's decision dated March 20, 1974, denying the respondent's
application for suspension of deportation under oeetion 244(a)(1) of the immigration and
Nationality Act.

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Interim Decision #2581

decision of December 3, 1976, and we find that for the reasons stated in
that decision the evidence then before us did not make a prima facie
showing that the respondent was eligible for adjustment of status as an
investor.
   As we mentioned in our decision of December 3, 1976, the regulation
exempting investors from the labor certification was amended prospectively effective October 7, 1976. Under the new version of 8 C.F.R.
212-8(b)(4), a prospective immigrant has to show that he has invested or
is actively in the process of investing capital totaling at least $40,000 in
an enterprise in the United States of which he will be a principal
manager and that that enterprise will employ a person or persons in the
United States who are United States citizens or aliens lawfully admitted
for permanent residence, exclusive of the alien, his spouse and children.
   The respondent is seeking to prove eligibility through operating
statements for the months of November /975 through December 1976,
with respect to a business we found unqualified in November 1975.
Rather than moving for reconsideration of the application on the basis of
evidence in existence at the time the application was filed and considered, the respondent is seeking consideration of his application on the
basis of evidence originating after the application was first submitted for
consideration. To consider that evidence under the original application
and under a regulation now superseded would only encourage the respondent and like applicants to prolong their unlawful stay in the United
States in the hope of eventually establishing eligibility under the defunct regulation. We are unwilling to allow this circumvention of the
duly published regulations.
   Accordingly, the respondent is required to meet the standards of the
present regulation since the documentation now before us was submitted after the entry in force of the new regulation. The documentation
presented is insufficient to make a prima facie showing that the respondent meets the requirements set forth there. Therefore, the motion will
be denied.
   ORDER: The motion is denied.




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