Interim Decision #2697
MATTER OF WANG
In Deportation Proceedings
A-21317106
Decided by Board April 2, 1979
(1) In renewing an application for adjustment of status in deportation proceedings,
pursuant to 8 C.P.A. 245.2(a)(4), a respondent has satisfied the visa availability requirement of section 245 of the Act where as here, a visa was available to him when he
originally filed his application with the District Director. Matter of Huang, Interim
Decision 2616 (BIA 1978).
(2) It was correct to apply the investor standards developed in Matter of Heitland, 14 I. &
N. Dec. 563 (BIA 1974), to an investment made in May 1975, to insure that aliens would
not displace qualified American workers, in accordance with Mehta v. INS,
574 F.2d 701
(2 Cir. 1978).
(3) It was appruin late to apply the investor standards developed in Matter ofHeittand,
14
I. & N. Dec. 563 (BIA 1974), to a case involving an investment made in May, 1975,
because the investment was made 16 months after Heitiand,
id. was decided and the
notice problem cited in RucEngswang v. INS, No. '77-2375 (9 Cir. November 2, 1978) was
Hapr esent.
(4)An alien who invests in an import-export trading company and a small grocery store is
not exempt from the labor certification requirement of section 212(a)(14) of the Act and
is not an investor under 8 C.F.R. 212.8(b)(4) where he has one part-time employee, and
performs virtually all of the labor, skilled and unskilled, necessary to the operation of
the business, and consequently does not meet the standards set forth in Matter of
Heitland, 14 L & N. Dec. 563 (BIA 1974).
(5)The opening of an oriental foodstuffs and objets d'art import-export business does not
exempt an alien from the labor certification requirements of section 212(a)(14) of the
Act, as it places the alien in direct competition with American businessmen engaged in
the same activity.
CiteitGE;
Order: Act of 1952—Se ction 241(a)(2) 18 U.S.C. 1251(a)(2)]—Nonimmigrant student—remained longer than authorized
ON BEHALF OF RESPONDENT: William J. Lawler, Esquire
Lawler & Lawler
115 Sansone Street
Suite 1111
San Francisco, California 94104
BY: Milhollan, Chairman; Dlaniatis, Appleman, Maguire, and Farb, Board Members
The respondent appeals from a September 27, 1977, decision in which
the immigration judge found him deportable as charged, denied his
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Interim Decision #2697
application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, but granted him the privilege
of voluntary departure in lieu of deportation. The appeal will be dismissed.
The respondent is a 31-year-old, single native and citizen of China
who entered the United States on August N, 1973, as a nonimmigrant
student. At his deportation hearing, the respondent conceded deportability as an "overstay". The only issue raised on appeal concerns his
application for adjustment of status.
The respondent seeks adjustment of status as a nonpreference immigrant claiming exemption from the labor certification requirement of
section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), as an investor within
the contemplation of 8 C.F.R. 212.8(b)(4). 1 The immigration judge found
that the respondent did not qualify as an investor under the regulations,
that he had not established visa availability as required by the statute,
and that his case did not merit a favorable exercise of discretion. In view
of our conclusions on the issues involving statutory eligibility, we will
not discuss the discretionary finding.
The immigration judge's holding on visa availability must be reversed
on the basis of our April, 1978 decision in Matter of Huang, Interim
Decision 2616 (BIA 1978). Upon reconsideration, we held that in renewing an application for adjustment of status in deportation proceedings,
pursuant to 8 C.F.R. 245.2(a)(4), a respondent has satisfied the visa
availability requirement of section 245 if a visa was available to him
when he originally filed his application with the District Director. A visa
was available in May, 1975 when the respondent filed his application
with the District Director. Hence, the visa availability requirement has
been satisfied. A fundamental deficiency in the application remains,
howev er.
' 8 C.F.R. 212.8(b)(4) was amended effective October 7, 1976. The amendment was
accompanied by a statement that Forms 1-526 (Request for Determination that Prospective Immigrant is an Investor) properly filed before October 7, 1976, are to be processed in
accordance with the regulation as it existed prior to the amendment. Since the respondent
applied for investor status before October 7, 1976, the old regulation governs this case. It
stated:
The following persons are not considered to be within the purview of section 212 (a)(14)
of the Act and do not require a labor certification; . . . . (4) 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 1 year's experience or training qualifying him to engage in such enterprise.
The amended regulation requires that the investment amount to at least $40,000. It also
wilds the requirement that the enterprise employ s person or persons who era United
c
States ncitizens
ci. or lawful permanent
an residents exclusive of the alien, his spouse, and
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Interim Decision #2697
The respondent invested $12,000 given to him by his father in an
import-export trading company. A small Chinese grocery store was
later added. A series of unaudited financial statements have been submitted since 1975 to prove that the volume of business is steadily
growing. The last of the statements, submitted in June, 1976, reflects a
net profit for a two-month period of $3,400. Aside from the help of a
part-time employee, however, the respondent operates the business
single-handedly.
The immigration judge concluded that the respondent did not qualify
as an investor inasmuch as his enterprise was in the nature of a small,
one-man retail operation which created no jobs for anyone other than
himself. Counsel insists that in so holding the immigration judge erroneously applied requirements which were formulated in connection
with an earlier version of the investor regulation. See Matter of Heitland, 14 I. & N. Dec. 563 (BIA 1974), aff'd,
551 F.2d 495 (2 Cir. 1977),
cert. denied
434 U.S. 819 (1977). 2 Alternatively, counsel argues that
even if the requirements set out in Heitland, supra, are applicable to
applications governed by 8 C.F.R. 212.8(b)(4), the respondent would
not be affected inasmuch as he is not competing with the American labor
force in his endeavor to "expand trade, a very complicated, individualized profession". (Respondent's Brief at 10.) He adds, moreover,
that the respondent has not taken an American worker's job but rather
has created a specialized position which an American worker is not
competent to fill.
Counsel's contention that the requirements set out in Heitland,
supra, are not applicable to the respondent's ease is incorrect. In Matter
of Ruangswang, Interim Decision 2546 (BIA 1976), we analyzed the
Service's new investor regulation, 8 C.F.R. 2 12.8(b)(4), in terms of
Congressional policies underlying the enactment of the labor certification requirement of section 212(a)(14). In light of the manifest purpose
of section 212(a)(14), we concluded that the following "test", developed
in Matter of Heitland, supra, under the earlier investor regulation, was
equally applicable to the amended version which governs the respondent's application.
The investment either must tend to expand job opportunities and thus offset any
adverse impact which the alien's employment may have on the market for jobs, or must
2 In an interrelated argument, counsel also insists, in essence, that the immigration
judge applied retroactively the requirements set out in the present version of 8 C.F.R-
212.8(b)(4), effective October 7, 1976. He nowhere amplifies this contention nor can we
find any suggestion that the immigration judge invoked requirements which had not
already been held applicable to investor cases under the regulations in effect at the time
the respondent's application was submitted. The fact that aspects of the requirements
under the superseded regulations were incorporated into the present version does not
support counsel's retroactive application theory.
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Interim Decision 4M97
be of an amount adequate to insure, with sufficient certainty, that the alien's primary
function with respect to the investment and with respect to the economy will not be as a
skilled or unskilled laborer.'
The Board's formulation and application of the HeitlandlRuangswang
doctrine was approved by the Second Circuit in Mehta v. INS, 574 F.2d
701 (2 Cir. 1978). 4 In discussing the appropriateness of applying the
Heitland test to the amended version of the regulations, the court
remarked:
Indeed, it was sensible for the Board to ennsistently protect the American labor market
by construing the later, more stringent regulation as it had the earlier one. The Board's
approach to the essence of the investor exemption under both regulations carried out
the legislative purpose in section 212(a)(14) of excluding immigrants whose putative
one-man operations "would likely displace a qualified American worker". (Mehta at
706).
Counsel's second contention that the respondent is not in competition
with the Arrierican labor market is unpersuasive. The opening up of the
respondent's import-export business necessarily heightened the competition among American businessmen engaged in the same activity. The
inference in counsel's brief that the importation of oriental foodstuffs
and objets d'art can only be successfully carried on by natives of the
countries from which the items come is unconvincing. We are confident
that Americans of every ethnic extraction participate in the volume of
international trade which presently exists between the 'United States
and countries of the Far East.
Finally the fact that the respondent has started his own business
rather than bought out an existing one is not dispositive. Compare
Matter of Konishi, Interim Decision 2658 (BIA 1978). Language in
earlier cases which suggested that an investor's employment in his own
business was not the job competition which Congress wished to protect
against was expressly limited in Ruccngswartg to those situations in
which the investor is not performing labor of a skilled or unskilled
-
nature which might be performed by an American worker or else in
which the investment had a tendency to expand job opportunities.
2Z2tangswang at 6.
3 In applying these standards to the respondent's case, we have considered the recent
decision handed down by the Ninth Circuit in Ruangswang v. INS, No. 77-2375 (9 Cir.
1•Tovember 2, 1.978). We have concluded that it is not applicable to the present case as the
Snvestment here was made in May 1975, 16 months after Heitland was decided, thus
foreclosing any problem with lack of notice which the court found to exist in the
Z2uangswang situation.
a The facts in Mehta are very similar to the instant case in that the alien attempted to
qualify as an investor by purchasing an oriental spice and handicraft store. In affirming
"our decision, the court noted with approval the immigration judge's conclusion that eves
If Mr. Mehta had demonstrated the necessary $10,000 investment, he would still not be
entitled to the exemption because his marginal enterprise did not create new job oppo7-
-tunities for the existing labor force.
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Interim Decision #2697
After careful consideration, we conclude, as did the immigration
judge, that the respondent does not fit the concept of investor. He is
engaged in the operation of a retail enterprise. He performs virtually all
of the labor, skilled and unskilled, necessary to the management and
direction of the business. What is characterized as profit is more accurately payment for his services. Tints, we hold that inasmuch as the
respondent's investment is not adequate to insure that his primary
function is not that of a skilled laborer, his exemption from the requirements of section 212(a)(14) cannot be approved.
ORDER: The appeal is dismissed.
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