Interim Decision #2500 

MATTER OF KO 

In Deportation Proceedings 

A-20548879 

Decided by Board June .17, 1976 

(1) Operations Instruction 245.4(a)(6) which provides that a case will be held in abeyance 

where the sole basis for applicant's ineligibility for relief under section 245 of the 

Immigration and Nationality Act is the unavailability of a visa number occurring 

subsequent to the filing of the application is not applicable to a case where respondent's 

application for adjustment of status was denied for lack of a valid labor certification, 

because in such instance, the respondent's ineligibility for section 245 relief was based 

on a reason other than the unavailability of a visa number which had occurred subsequent to the filing of the application. 

(2) Matter of Ho, 15 I. & N. Dec. 692, distinguished. 

CHARGE: 

, 

Order: Act of 1952—Section 241(a)(2)-18 U.S.C. 1251(a)(2)1 7-Nonimmigrantremained longer 

ON BEHALF OF RESPONDENT: John B. Bartos tEsquire 

4676 Admiralty Way, Suite 632 

Marina Del Rey, CA 90291 

In a decision dated August 18, 1975, the immigration judge found the 

respondent deportable, denied his application for adjustment of status 

under section 245 of the Immigration and Nationality Act, and granted 

the respondent the privilege of voluntary departure. The respondent 

has appealed from the denial of his application for adjustment of status. 

The appeal will be dismissed. 

The respondent is a native and citizen of China who entered the 

United States in 1971 as a nonimmigrant student. The respondent has 

conceded deportability as a nonimmigrant who has remained beyond the 

authorized length of his stay. The only issues on appeal involve the 

denial of the respondent's application for section 245 relief. 

The respondent initially submitted his application for adjustment of 

status to the district director, prior to the commencement of these 

proceedings. At that time, the respondent sought section 245 relief as a 

nonpreference immigrant claiming exemption from the labor certification requirements of section 212(a)(14) as an investor ' within the 

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eontemplatiou of 8 CFR 212.8 (b)(4). The district director denied the 

respondent's section 245 application, finding that the respondent had 

not established his claim to investor status. The district director based 

his decision on the respondent's lack of training in the field in which he 

allegedly invested, and the fact that the respondent appears to be a 

minority shareholder in the business. The respondent evidently filed a 

motion to reconsider the district director. However, prior to the filing of 

that motion the district director had issued the order to show cause in 

this case, thus lodging jurisdiction over the section 245 application with 

the immigration judge. See 8 CFR 245.2(a)(1). 

At his hearing the respondent renewed his application for section 245 

relief before the immigration judge. The immigration judge denied the 

application on the ground that a visa was not then available to the 

respondent as a nonpreference immigrant. See Department of State 

bulletin on 'the Availability of Immigrant Visa Numbers for August 

1975. A review of recent Department of State bulletins on the Availability of Immigrant Visa Numbers indicates that visas have been unavailable to nonpreference aliens from China since June of 1975. 

In his brie:' on appeal, counsel for the respondent implicitly acknowledges the fact that a visa is presently unavailable to the respondent as a 

nonpreference immigrant. Counsel, however, seeks a remand on the 

basis of the Service policy expressed in Operations Instruction 245.4 

(a)(6). In his brief, counsel also requests that the district director be 

required to process the respondent's application for a labor certification 

as a professional (Form MA7-50A). While it is not entirely clear from 

the record, it appears that the respondent desires to be classified as a 

preference immigrant under section 203(a)(3) of the Act. 

The Operations Instruction relied upon by the respondent basically 

provides for the holding in abeyance of any case in which an alien has 

submitted aflection 245 application at a time when a visa number was 

available to him, but in which he is precluded from receiving that relief 

solely because a visa number is not available at the time the processing 

of the case ,is completed. The respondent•contends that this Operations 

Instruction has application in this ease because he submitted his section 

246 application to the District Director at a time when a nonpreference 

number was available.to him. We find, however, that the Operations 

Instruction has no bearing on this case because there is another basis for 

denial of the respondent's application for adjustment of status. This 

case, therefore, , differs from Matter of Ho, 15 I. & N. Dee. 

692, also decided today, because the respondent's ineligibility for 

section 245 relief is not solely related to the unavailability of an immigrant visa number. 

In order to be eligible for adjustment of status the respondent must 

meet the labor certification requirements of section 212(a)(14) of the 

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Interim Decision #2500 

Act. The respondent presently contends that he meets this requirement 

as an investor. The district director's decision denying the respondent's 

application for adjustment of status, however, calls into question many 

aspects of the respondent's investment. That decision appears to have 

been correct. For example, the respondent has not shown that he has 

assumed substantial responsibility for the direction and control of the 

enterprise as is required to qualify for the investor exemption. See 

Matter of Yang, 15 I. & N. Dec. 147 (R.C. 1974); Matter of Ko, 

14 I. & N. Dec. 349 (Dep. Assoc. Commr. 1973). The respondent has therefore failed to meet the burden of proof requirements 

imposed by Matter of Ahmad, 15 L & N. Dec. 81 (BIA 1974). In 

addition, the respondent has not shown that he is eligible for adjustment 

of status as a preference immigrant under section 203(a)(3) or (a)(6). We. 

note that the pendency of these deportation proceedings does not bar 

the respondent from attempting to establish such eligibility by seeking 

approval of a petition filed under 8 CFR Part 204. 

The respondent is not presently eligible for adjustment of status 

under section 245. On this record, it has not shown that he meets the 

labor certification requirements of section 212(a)(14) of the Act. Furthermore, as has been indicated, a visa is not presently available to the 

respondent as a nonpreference immigrant. The decision of the immigration judge was correct. The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily 

within 31 days from the date of this order or any extension beyond that 

time as may be granted by ,the district director; and in the event of 

failure so to depart, the respondent shall be deported as proVided in the 

immigration judge's order. 

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