DAMIOLI

                                                           Interim Decision #2774




                               MATTER OF DAMIOLI

                           In Section 248 Proceedings

                                   . A-22622403

             Decided by the Commissioner January 18, 1980

Native born United States citizen who is a dual national of the United States and Italy by
 marriage and operation of foreign law is statutorily ineligible to confer treaty trader
 status on alien beneficiary employed by her firm where she has chosen to assert her
 United States citizenship as the predominant nationality by various actions taken to
 benefit the conduct of her business.
ON BEHALF OF PETITIONER:       Stanley Mailman, Esquire
                               1290 Avenue of the Americas
                               New York, New York 10019


   This matter is before the Commissioner on certification, as provided
by 8 C.F.R. 103.4, for review of the Regional Commissioner's order
sustaining the District Director's decision to deny the application for
change of nonimmigrant status.
   The applicant is a 27-year-old native and citizen of Italy who entered
the United States on July 15, 1978, as a visitor for pleasure authorized
to remain until September 30, 1978. On September 25, 1978, the appli,
cant submitted an application for change of nonimmigrant classification to that of treaty investor. This classification was sought to enable
the applicant to assume duties as director and manager of a United
 States enterprise in the Virgin Islands which charters vessels used for
fishing, scuba diving, tours and other water sports and activities. This
enterprise, which is incorporated under United States law, is wholly-owned by an. individual who is a native-born United States citizen, and
who also claims to be a citizen of Italy through marriage and operation
of Italian law.
   The application for change of nonimmigrant classification to treaty
investor was approved by the District Director on September 29, 1978.
Shortly after the approval, however, the District Director determined
that the applicant was not in fact eligible for treaty investor status
because the owner of the enterprise was a United States citizen, and

                                          303
Interim Decision #2774
that the approval was therefore in error. On the same day, the applicant was requested to return to the Immigration and Naturalization
Service office at which time the adjudicating officer voided the approval by obliterating his previous endorsements of the applicant's
application, arrival/departure record, and passport. The applicant was
informed that the case would be reviewed further before final
disposition.
  On October 3, 1978, a notice of denial was apparently issued by the
District Director and mailed to the applicant through the Attorney of
Record. Though this denial is referred to by both the applicant and the
District Director, it does not appear in the record. There does appear in
the record a denial dated November 2, 1978, in which the District
Director sets forth two reasons for denying the application:
   1. That the applicant could not qualify as a treaty investdr under section
 101(a)(15)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(E)(ii),
 as amended, because he had neither invested nor was in the process of investing any
 capital in the subject enterprise; and
   2. That the applicant could not qualify for treaty investor status under 22 C.F.R.
 41.41 as an employee of an organization which is principally owned by a person having
 the nationality of the treaty country, because the owner of the involved enterprise is a
 United States citizen.
   On November 9, 1978, the District Director moved for reconsideration of his earlier approval in view of his subsequent finding that the
applicant was ineligible for treaty investor status. For basically the
same reasons as identified in his denial of November 2, 1978, the
District Director ordered that the case be reopened, that the approval
of September 29, 1978, be rescinded, and that the denial of October 3,
1978, be held in abeyance pending submission of countervailing
evidence by the applicant as to why such denial should not stand. In
response, the applicant argued that the District Director's motion was
procedurally and substantively defective because, among other things,
the District Director cannot be considered "an affected party" under 8
C.F.R. 103.5, and because the motion set forth no new evidence establishing the applicant's ineligibility for treaty investor status. On
December 11, 1978, the District Director denied the application and
certified the case to the Regional Commissioner for review.
   The applicant appealed the District Director's October 3, 1978, denial to the Regional Commissioner on November 13, 1978, arguing that
there is no provision under section 248 of the Immigration and Nationality Act, 8 U.S.C. 1258, to rescind an approved change of nonimmigrant classification, and that he was in any event eligible for treaty
investor status on the ,basis of hio employment by an organization
which is principally owned by a person having the same nationality of
the treaty country. On January 29, 1979, the Regional Commissioner
                                          304
                                                            Interim Decision #2774
dismissed the applicant's appeal, ruling that 8 C.F.R. 103.5 does give
the District Director the authority to reopen and reconsider his decision, and that the certification of the case to the Regional Commissioner served to remedy any procedural defects which may have occurred
at the district level. The Regional Commissioner further ruled that
because the owner of the subject enterprise failed to satisfactorily
establish that she was an Italian national, the applicant was ineligible
for treaty investor statue as her employee.
  This case appears to be one of first impression. The controlling lime
to be resolved is whether a United States citizen at birth who later
acquired Italian nationality through marriage and the operation of
Italian law, and who has invested in a United States enterprise, is
eligible to confer treaty investor status upon an alien employee of such
enterprise under the Immigration and Nationality Act, as amended.
The resolution of this issue must begin with an analysis of the statute
and pertinent regulations.
   The requirements for qualifying for treaty investor status are clearly net forth in 22 C.F.R. 41.41. Among other things, the regulation
provides that an alien may establish such status if "... he is employed
by ... an organization which is principally owned by a person ... having the nationality of the treaty country...." While the evidence of
record is not conclusive, I am satisfied that the investor here is an
Italian national by operation of Italian law. This case does not, however, turn on the Italian nationality of the owner of the enterprise. Her
dual Italian nationality does not, standing alone, make the applicant
here eligible for the status of a treaty investor under 22 C.F.R.
41.41(a)(3).
  A treaty investor is defined as:
 ... an alien entitled to enter the United States under and in 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 ... solely to develop and direct the operations of
 an enterprise in which he has invested... a substantial amount of eaptial;
   Section 101(a)(15)(E) Immigration and Nationality Act, 8 U.S.C.
1101 (a)(15)(E), as amended. (Emphasis added.) This statutory requirement of alienage is further articulated in 22 C.F.R. 41.3, which specifically prohibits the issuance of visas to nationals of the United. States,
which includes citizens. The record, hOwever, contains clear and uncontroverted evidence that the employer here is not an alien, but
rather a native born United States citizen. Nor is there any evidence or
                  -


assertion in the record that she has voluntarily relinquished or
otherwise lost her United States citizenship. As such, she would not be
entitled to enter the United States as an alien, as required by the
statute, but rather as a United States citizen. As a United States
citizen, she is therefore statutorily ineligible for treaty investor status.
                                          305
Ifiterim Decision #2774

Because she cannot qualify as a treaty investor, the applicant here
cannot qualify as a treaty investor as her employee under 22 C.F.R.
41.41(a)(3).
   The applicant argues that his prospective employer's dual Italian
nationality qualifies him for treaty investor status, notwithstanding
her United States citizenship. He attempts to expand this country's
recognition of the principle of dual nationality to the point where he
would compel the United States to at once treat the Italian citizenship
of his employer with an equal degree of legal and political force as it
does her United States citizenship. This position, however, is not
Supported by authority or logic. The cases the applicant cites on this
point relate to the loss of United States citizenship and the tax liabilities of dual nationals—neither of which issue is relevant to this case.
On the other hand, there is ample authority which holds the contrary
position. For example, Hyde, in his treatise International Law, at
p. 1131, states that:
  Two States may in fact lay claim to the same individual as a national at the same time.
  This circumstance does not, however, place the claimants on an equal footing. The
  equities of one are of necessity superior to those of the other. They cannot at the same
  *oment be on the same plane. (Emphasis supplied.)
   The legal and Political predominance of the owner's United States
Citizenship here is clear. In fact, it is by her own affirmative actions to
invoke her United States citizenship to establish and maintain her
Wiliness enterprise in this country that the predominance of such
citizenship is evident. In order to obtain Certificates of Registry from
the United States Coast Guard necessary for her wholly-owned enterprise to ply United States coastal waters, the enterprise was required
to be at least 75% owned by United States citizens. Additionally,
continuing permission from the Coast Guard to ply United States
Waters under the Certificates of Registry will continue only as long as
76% of the enterprise is owned by United States citizens. Thus, the
owner of the enterprise held herself out as a United States citizen
when she sought and was granted Certificates of Registry issued under
the jurisdiction of the United States Coast Guard. Moreover, she is
continuing to hold herself out as a United States citizen in order to
keep her Certificates of Registry in force. Clearly, then, the owner has
elected to have the United States recognize her United States citizenship as predominant. Had she sought such recognition of her Italian
citizenship, her enterprise would not have been issued the necessary
'ertificate of Registry by the United States Coast Guard and would not
have been allowed to ply its trade in United States waters. In other
words, the very existence of the business upon which the applicant
seeks treaty investor status would not be possible unless its owner
were a citizen of the United States.

                                            306
                                                Interim Decision #2774
   The applicant nonetheless contends that the United States should
give equal recognition to his employer's Italian Citizenship in order
that he may receive treaty investor status as her employee under 22
        41.41(3). To do so would allow a situation in which she would be
able to secure benefits from one Government agency by claiming to be
a United States citizen, and simultaneously secure other benefits from
a second Government agency by claiming to be an Italian citizen. The
owner's dual nationalities, however, are not interchangeable at will
depending upon the relative Government benefits she may be granted
or denied by claiming one or the other. As indicated above one of the
two nationalities must predominate. Here the affirmative actions of
the owner herself establish the predominance of her United States
citizenship.
   The only remaining issue to be disposed of is what effect, if any, the
District Director's approval and subsequent denial of the application
on September 29, 1978, has on the outcome of the case. The District
Director has the authority tinder 8 C.F.R. 103.5 to reconsider his
completed actions. There is no question that the manner by which the
District Director rescinded the approval of the instant application was
procedurally defective. The only consequence of such defect to the
applicant, however, was that he did not receive a benefit for which he
was statutorily ineligible. In any event, he was granted a subsequent
opportunity by the District Director to submit countervailing
evidence. This overcomes the earlier procedural defect in this case and
renders it harmless error, and no ground for reversal of the District
Director's decision.
   ORDERS The District Director's decision of December 11, 1978, be
affirmed, and the application for change of nonimmigrant classification is hereby denied.




                                  307