Matter of Heitland, Interim Decision Number 2259

• Decision Date: 25 January 1974
• Docket Number: A-19492601,A-17587648,Interim Decision Number 2259
• Citation: 14 I&N Dec. 563
• Parties: MATTER OF HEITLAND In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

14 I&N Dec. 563

MATTER OF HEITLAND

In Deportation Proceedings

Interim Decision Number 2259

A-19492601

A-17587648

Board of Immigration Appeals.

Decided by Board January 25, 1974

(1) A "commercial or agricultural enterprise" within the meaning of 8 CFR 212.8(b)(4) requires a business venture productive of some service or commodity.

(2) The nature of an "investment" within the meaning of 8 CFR 212.8(b)(4) must be such that it tends to guard against the possibility that the alien will compete with American labor for available skilled or unskilled positions.

(3) A Florida land holding (which appears to be of a speculative nature) and a savings bank account (which is more an accumulation of funds than an active entrepreneurial undertaking) do not qualify as "investments" within the meaning of 8 CFR 212.8(b)(4) for the purpose of exemption from the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act, as amended.

(4) To meet the test of "substantial investment" within the meaning of 8 CFR 212.8(b)(4) prior to its amendment of February 12, 1973, the investment must tend to expand job opportunities or must 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 (Matter of Finau, 12 I. & N. Dec. 86, overruled).

(5) Where a truck valued at $3,400 is the sole property item used in a capacity productive of a product or service in the alien's delivery and merchandise business, the business is marginal, and rather than opening up new jobs the business has placed him in competition with other small delivery service drivers doing skilled or unskilled labor, the alien is ineligible for exemption from the labor certification requirement pursuant to 8 CFR 212.8(b)(4), under either the regulation as amended on February 12, 1973, or as it existed prior to that date.

CHARGES:

Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)] — Nonimmigrant — remained longer (female respondent)

Act of 1952 — Section 241(a)(1) [8 U.S.C. 1251(a)(1)] — Excludable at entry under section 212(a)(20) [8 U.S.C. 1182(a)(20)] — immigrant not in possession of proper document

ON BEHALF OF RESPONDENT: Jules E. Coven, Esquire One East 42nd Street New York, New York 10017

ON BEHALF OF SERVICE: David L. Milhollan Appellate Trial Attorney Alexander Schonfeld Trial Attorney

The Immigration and Naturalization Service has appealed the October 4, 1972 decision of an immigration judge which granted the respondents' applications for adjustment of status under section 245 of the Immigration and Nationality Act. The appeal will be sustained and the case remanded for further proceedings.

The alien respondents are husband and wife and natives of Germany. The male respondent is a citizen of Canada and the female respondent is a citizen of Germany. The deportability of each respondent has been conceded and the only issues presented by this appeal involve the grants of adjustment of status.

Section 245 of the Act specifies that an alien seeking this descretionary remedy initially must establish that he has been inspected and admitted or paroled into the United States, that he is eligible to receive an immigrant visa and admissible for permanent residence, and that an immigrant visa is immediately available at the time his application is approved. The respondents have been inspected and admitted as nonimmigrants and they appear to satisfy the "qualitative" provisions of the Act. Therefore, the question of their statutory eligibility centers on whether they qualify for the immigrant status which they seek and on the availability of visas for aliens of that status.

The respondents have sought this relief as nonpreference immigrants from the Eastern Hemisphere. A review of the Department of State Bulletins on Visa Availability indicates that nonpreference visas were currently available for Eastern Hemisphere immigrants during the months surrounding the hearing and decision below. Consequently, the respondents would have been statutorily eligible for adjustment of status if, at the date of the immigration judge's decision, they satisfied the requirements of section 212(a)(14) of the Act.

Section 212(a)(14) basically precludes the issuance of visas to certain aliens, including nonpreference immigrant aliens, who seek to enter the United States for the purpose of performing skilled or unskilled labor, unless they have obtained the required labor certification. The male respondent concedes that he must work to support himself and his family; furthermore, he acknowledges that he has not obtained labor certification. He nevertheless contends that he qualifies for an exemption from the labor certification requirements of section 212(a)(14) as an "investor" within the contemplation of 8 CFR 212.8(b)(4). On the date of the immigration judge's grant of the respondents' section 245 applications, that regulation stated, in relevant part:

The following persons are not considered to be within the purview of section 212(a)(14) of the Act and do not require labor certification:

...

(4) an alien who will engage in a commercial or agricultural enterprise in which he had invested or is actively in the process of investing a substantial amount of capital.

The pertinent portion of this regulation, however, was modified subsequent to the Service's appeal in this case. See 38 Fed.Reg. 1380, January 12, 1973; 38 Fed.Reg. 8590, April 4, 1973. The regulation now permits the labor certification exemption for:

(4) an alien who establishes ... 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....

It appears that the Service will consider any request for the "investor" exemption filed prior to the effective date of the new rule under whichever formulation of the regulation is more favorable to the alien, Matter of Ko, Interim Decision No. 2201 (Dep.Assoc.Comm.1973). We shall follow that approach for purposes of this appeal.

The male respondent presently operates a merchandise and message delivery service. He owns a truck which appears to be equipped with a two-way radio. Orders for the pickup and delivery service are received over the two-way radio from a dispatching firm that subcontracts delivery work to numerous independent drivers. In 1970 the male respondent's gross income from the operation of this enterprise was $14,000; his net income was $4,500. It appears that the truck and the radio, which he values at $3,400,...