LETT

Interim Decision #2776




                                  MATTER OF LETT

                           In Deportation Proceedings

                                      A-12852618

                       Decided by Board March 18, 1980

(1) Management of his investment by a qualified investor deemed exempt from the labor
  certification requirement of section 212(a)(14) of the Act, S U.S.C. 1182(2)(14), does not
  constitute employment within the contemplation of that section of the Act and he is
  not precluded from adjusting his status under section 245(c)(2), 8 U.S.C. 1255(c)(2),
  relating to unauthorized employment.
(2) An unsuccessful applicant for the investor exemption provided by 8 C.F.R.
  2122(b)(4) runs the risk that work performed in connection with his nonqualitied
  investment may be considered unauthorized employment for purposes of the section
  245(c)(2) adjustment preclusion. Matter of Tong, 

 (BIA 1978),
  distinguished.
(3) An alien found deportable by virtue of being excludable at entry under section
  212(a)(9) of the Act, 8 U.S.C. 1182(a)(9) must include an application for a 212(h) waiver
• of inadmissibility (Form I-601), supported by a showing of extreme hardship to his
  citizen or lawful permanent resident spouse, parent, son or daughter, in order to be
  entitled to reopening for adjustment of status.
 CHARGE:
' Orden Act of 1952—Section 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1)]—Alien excludable
                       at entry for having been convicted of a crime involving moral
                       turpitude under section 212(a)(9), I&N Act [8 U.S.C. 1182(a)(9)]
ON BEHALF OF RESPONDENT: ALBERT J. REISS, ESQUIRE
                         Walters & Constanzo Associates
                         100 Biscayne Boulevard North
                         Suite 1001
                         Miami, Florida 33132
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members



  The respondent appeals from the June 8, 1.979, decision of the immigration judge denying his motion for reopening in order to apply for
adjustment of status. The appeal will be dismissed for a different
reason than the immigration judge's conclusion.
  The respondent is a native and citizen of Canada. He entered the
United States on November 1, 1976, as a nonimmigrant visitor. On May

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4, 1977, he conceded deportability under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), for being excludable at entry by virtue of his having been convicted in Toronto, Ontario
on November 28, 1957, on six counts of false pretenses under Section
304A of the Criminal Code of Canada (Ex. 1) (Tr. p. 2). On April 26,
1978, he submitted an application for adjustment of status (Form
1-485) supported by a request for determination as an investor (Form
1 526) seeking an exemption from the labor certification requirement
 -


of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14). That application
was treated as a motion to reopen pursuant to 8 C.F.R. 242.22.
  The immigration judge denied the motion ruling that the respondent's management of his investment constituted unauthorized self-employment which barred him from adjusting his status under the
preclusion from adjustment prescribed by section 245(c)(2) of the Act,
8 U.S.C. 1255(c)(2). The immigration judge relied on our decision in
Matter of Tong, 16 MN Dee. 593 (BIA 1978), where we held that a
beneficiary of an approved relative visa petition, who was not an
immediate relative of a United States citizen and engaged in
unauthorized self-employment, was engaged in unauthorized employment. This precluded him from having his status adjusted under
section 245(e)(2) of the Act. The immigration judge erred in extrapolating the Tong rationale to an applicant for an exemption from the
labor certification requirement as an investor.
  The respondent properly pointed out the clarification by the Service's Assistant Commissioner for Adjudications stating that self-employment without prior authorization does not have the same
meaning as unauthorized and does not preclude adjustment of status
under section 245(c)(2) in the case of a qualified nonpreference havestor. An unsuccessful applicant for an investor exemption from the
labor certification requirement runs the risk that work performed in
connection with his nonqualifying investment may be considered
unauthorized employment. If, however, the applicant is deemed a
qualified investor of an enterprise with capital exceeding $40,000 and
with qualified employees, his management work does not constitute
employment within the contemplation of section 212(a)(14) of the Act,
8 U.S.C. 1182(a)(14).
  Nevertheless, the immigration judge properly denied the motion to
reopen. A motion to reopen must be supported by prima facie evidence
of eligibility for the relief sought. Matter of Lain, 

 (BIA
1972); Matter of Sipus,

 (BIA 1972). The respondent was
found deportable for being excludable at entry under section 212(a)(9)
of the Act, 8 U.S.C. 1182(a)(9). He remains excludable. In order to
obtain relief from his excludability he must submit an application for
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212(h) waiver (Form 1-601) supported by a showing of extreme hardship to the respondent's United States citizen child. Without such an
application the motion to reopen lacked prima facie evidence of eligibility for adjustment of status. Accordingly, the appeal will be dismissed without prejudice to a future motion with the proper
documentation.
  ORDER The appeal is dismissed.




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