Interim Deeision #1303 

MATTER OF TAUTTRA 

In SECTION 248 Proceedings 

A-13293187 

Danidetlby Regional Commissioner July 15,1994 

Since a nonimmigrant alien who is employed as a chief cook, supervising 3 to 4 

subordinates in the preparation of Japanese fried food specialties and performing the duties of the main kitchen chef in the latter's absence, is employed in a "responsible capacity" within, the meaning of 22 OFR 41.41, he 

is eligible for a change of nonimmigrant status under section 248, Immigration 

and Nationality Aet, as amended, to that of an employee of a treaty investor 

under section 101(a) (15) (E) (ii) of the Act. 

This matter is before the Regional Commissioner on appeal from 

the denial of the application for change of nonimmigrant status. 

The applicant is a married Japanese subject, born August 31, 1930 

at Baguio, Philippines. He was admitted to the United States at 

Honolulu, Hawaii on November 22, 1962 under section 101(a) (15) 

(H) (1) of the Immigration and Nationality Act on the basis of a petition filed by Saito Restaurant, Inc., a well-known Japanese eating 

establishment in New York City. He was authorized to remain until 

November 21, 1963. On October 10, 1963 he applied for change of 

nonimmigrant status to that of a treaty investor under section 101(a) 

(15) (E) (ii) of the Act. 

The Saito Restaurant, which has recently moved to a new location, 

represents an investment of approximately one million dollars. Its 

owners, Mrs. Moto Saito and her son, Tokio Saito, are Japanese Nationals who are presently maintaining E-2 status. The applicant 

is in their employ as a chief cook, supervising three to four others in 

the preparation of Japanese fried food specialties. He earns $103 a 

week and is provided with meals and living quarters. In denying his 

application for change of nonimmigrant status, the District Director 

found that the applicant is ineligible for classification as a treaty investor because he has no financial interest in the restaurant. 

Section 101 ( a) (10) (E) (ii) of the Immigration and Nationality Act 

defines a treaty investor as an alien entitled to enter the United States 

717 
Interim Decision #1393 

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, and the spouse and children of any such alien if accompanying or following to join him, solely to develop and direct 

the operations 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. The applicable regulation (22 OFIt 41.41) 

further provides as follows: 

§ 41.41 Treaty favestors. (a) An alien shall be classifiable as a nonimmigrant 

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 upon the termination 

of his status; and (2) He is an alien who has invested or is investing capital 

in a bum fide enterprise and in not cooking 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 or organization of the same nationality as the applicant 

A Treaty of Friendship, Commerce and Navigation exists between 

the United States and. Japan. Article VIII o(this treaty states, in 

part, that nationals and companies of either party shall be permitted 

to engage, withinthe territories of the other party, accountants and 

other technical experts, executive personnel, attorneys, agents and 

other specialists of their choice. Matter of Kobayashi and Doi, Interim Decision #1313. 

The applicant herein is engaged as chief cook by Japanese nationals 

who have invested substantial sums of money in establishing a restaurant known for its excellent Japanese ouisine. He was brought to 

the United States by his employers because of his skill in the preparation of Japanese dishes. He is not only charged with the responsibility of supervising several subordinate cooks in preparing fried 

food specialties but also performs the duties of the main kitchen chef 

in the latter's absence. In contradistinction to the restaurant service 

personnel discussed in Matter of Kobayashi and Doi, supra, we find 

that the instant applicant is employed in a "responsible capacity" 

within the meaning of 22 CFR 41.41 and additionally, may be considered to be a "specialist" within the contemplation of Article V.1.11 

of the aforementioned treaty between the United States and -Japan. 

Accordingly, the appeal Will be sustained. 

It is ordered that the decision of the District Director be reversed 

and that the application for change of nonimmigrant status be 

granted. 

718