Interim Decision *tn66
MATTER or NAGO
In Exclusion Proceedings
A-21223151
Decided by Board February 8, 1978
Where the applicant for admission to the United States is a highly trained chef who is
engaged. in a specialized form of Japanese (Nabemono) cooking and has been brought to
the United States to impart his knowledge and share his experiences with other
employees of a treaty investor in order to enable them to become proficient in
"Nabemono" cooking, Board of Immigration Appeals concluded that the applicant is
employed by a treaty investor in a responsible capacity and therefore qualifies for
admission as a nonimmigrant alien within the meaning of section 101(a)(15)(E)(ii) of the
Act, 8 U.S.C. 1101(a)(15)(E)(i).
Excludable: Act of 1952—Section 212(a)(20) [8 U. S. C. 1182(aX20)j—Immigrant--no visa
ON BEHALF or APPLICANT: ON BEHALF OF SERVICE:
William F. Thompson, III, Gary Y. Fujiwara
Esquire Trial Attorney
'925 Bethel Street
Honolulu, Hawaii 96813
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
On February 14, 1977, the immigration judge issued an order finding
that the applicant, Osami Nago, qualifies for admission to the United
States as a nonimmigrant treaty investor under section 101(a)(15)(E)(ii)
of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(E)(ii). He
ordered that the applicant be admitted to the United States as an "E-2
nonimmigrant" for a period to expire on August 14, 1977. The Immigration and Naturalization Service appealed from that decision. Subsequent to its appeal, the Service waived oral argument before this
Board. The Service appeal will be dismissed.
The applicant is a 23-year-old single male alien who is a native and
citizen of Japan. He arrived in the United States at Honolulu, Hawaii,
on November 11, 1976. The applicant, at that time, was in possession of
a valid passport issued by the Government of Japan and a nonimmigrant
(E-2) visa. He applied for admissio•as a nonimmigrant treaty invest or
under section 101(a)(15)(E)(ii) of the Act.
446
Interim Decision #2633
The applicant was served by an immigration officer with a notice
(Form 1-122) informing him that he appeared to be an immigrant not in
possession of a valid unexpired immigrant visa; that it did not appear
that he was exempt from presentation of such a document; and that he
may come within the exclusion provisions of section 212(a)(20) of the
Act, 8 U.S.C. 1182(a)(20). He was also notified of the time and date of
his hearing in exclusion proceedings. The hearing was conducted on
February 14, 1977.
The record reveals that the applicant is a Japanese specialty cook who
is employed for a one -year period at "Yakiniku House Osaka", a
Japanese restaurant located in Honolulu. The restaurant is owned by, a
Japanese nonimmigrant treaty investor who seeks the culinary services
of the applicant who is apparently well versed in a specialized type of
Japanese cooking known as "Nabemono." The applicant will cook in the
"Nabemono" style and train other employees of the restaurant in this
form of cooking. It appears that "Nabemono" chefs are scarce in the
United States and that the applicant's employer has been searching for
such a chef for several years. The applicant's employer testified that the
applicant is a graduate of a leading Japanese cooking school and experienced in the art of "Nabemono" cooking. The applicant's employer also
testified that the applicant will teach other employees to carry on the
"Nabemono" style of cooking; that the "Nabemono" process can be
learned in one year, and that the applicant intends to return to Japan
after one year. The immigration judge found that the "Nabemono" type
of cooking ". . . requires a highly trained or specially qualified technical
person for the preparation of the food and for the purpose of teaching
others to perform the process."
The applicant seeks admission as a nonimmigrant treaty investor.
Section 101(a)(15)(E)(ii) of the Act defines a treaty investor as:
. . . an alien entitled to enter the United States under and in the pursuance of the
provisions of a treaty of commerce and navigation between the United States and the
foreign state of which he is a national, and the spouse and children of any such alien if
accompanying or following to join him:
(i) . . .
(ii) solely to develop and direct the operation of an enterprise in which he has invested,
or of an enterprise in which he is actively in the process of investing, a substantial
amount of capital... .
In Matter of Udagawa,
14 I. & N. Dec. 578
(BIA 1974), we pointed
out that a reasonable construction of section 101(a)(15)(E)(ii) is contained in 22 C.F.R. 41.41. The relevant portion of this Department of
State regulation states:
(a) An alien shall be classifiable as a noninunigrant treaty investor if he establishes to
the satisfaction of the consular officer that he qualifies under the provisions of section
101(a)(15)(E)(ii) of the Act and that: (1) He intends to depart from the United States
447
Interim Decision 4tzti;i6
upon the termination of his status; and (2) he is an alien who has invested or is investing
capital in a bona fide enterprise and is not seeking to proceed to the United States in
connection with the investment of a small amount of capital in a marginal enterprise
solely for the purpose of earning a living; or that (3) he is employed by a treaty investor
in a responsible capacity and the employer is a foreign person having the nationality of
the treaty country who is maintaining the status of a nonimmigrant treaty investor, or
an organization which is principally owned by a person or persons having the nationality of the treaty country, and if not residing abroad, maintaining nonimmigrant
treaty investor status. (Emphasis supplied.)
We construe the above regulation to mean that an alien such as the
applicant will qualify as a "treaty investor" if he has the necessary
intent to depart and if he meets the conditions imposed by subdivision
(3) of the quoted portion of the regulation. Since the evidence adduced at
the hearing indicates that the applicant's employer is a foreign person of
the same nationality as the applicant and that the applicant possesses
the requisite intent to return to Japan, the remaining issue in this case is
whether he can be considered to be "employed ... in a responsible
capacity. . . ." 'Matter of Udagawa, supra; Matter of Tamura., 10 L &
N. Dec. 717 (R.C. 1964).
It is clear that the applicant is a highly trained chef who is engaged in
a specialized form of Japanese cooking. The applicant has been brought
to the United States to impart his knowledge and share his experiences
with other employees of the treaty investor in order to enable them to
become proficient in "Nabemono" cooking. We conclude that the applicant is employed by a treaty investor in a responsible capacity. Therefore, the applicant qualifies for admission as a nonimmigrant alien
within the meaning of section 101(a)(15)(E)(ii) of the Act.
We note that the applicant has been in the United States in a parole
status for more than one year and that the period of the applicant's
authorized stay as set by the immigration judge in his order has expired.
These facts should be considered by the District Director in determining
the period that the applicant is allowed to remain in the United States as
an employee of a nonimmigrant treaty investor. Accordingly, the appeal
of the Immigration and Naturalization Service is dismissed.
ORDER: The appeal of the Immigration and Naturalization Service
is dismissed.
' An elaboration of the provisions of 22 C.F.R. 41.41 are contained in Note Number 4 of
Volume 9 (Visas) of the Department of State Foreign Affairs Manual. That note provides,
in pertinent part, that highly trained technical and managerial personnel employed by
firms having the nationality of a country which has entered into a treaty with the United
States providing for the investor classification are entitled to treaty investor status if they
are engaged in the training or supervision of technicians employed in manufacturing,
maintenance, and repair functions.
448
