Interim Decision #1313 

MATTER Or KOBAYASHI Arm Dox 

In SECTION 248 Proceedings 

A-13054614-5 

Decided by District Director JuZy 8,1963 

Approved by Regional Commissioner August 26,1963 

Approved by Deputy Associate Commissioner December X9,1963 

Since managerial employees charged with the training or instruction and supervision of entertainers and waiters in a theatre restaurant are not employed 

in the "responsible capacity" required by 22 CM 41.41, they are not properly 

classifiable as nonimmigrant employees of a treaty investor under section 

101(a) (15) (E) (ii) of the Immigration and Nationality Act. 

Both applicants are natives and citizens of Japan who last entered 

the United States on August 29, 1961 at which time they were admitted 

as nonimmigrants of the class described in section 101(a) (15) (H) (i) 

of the Act. Their last extension of stay expired on June 30, 1963. By 

their present applications, filed on May 6, 1963, they seek to change 

their status to that of a nonimmigrant employee of a treaty investor as 

defined in section 101(a) (15) (E) (ii). The applications were filed 

while they were continuing to maintain aw status under which they 

were first admitted and their prospective employer, Kiyoshi Sakurai, 

has invested a substantial amount of capital in a theater restaurant in 

Honolulu called the Ishii Gardens, Inc. (On. July 1, 1963 he was 

granted a change of his nonimmigrant status from visitor to treaty 

investor.) 

The minimum statutory requirements have been met and the sole 

issue herein is whether the applicants are properly classifiable as 

"employees of a treaty investor". 

I find no legal or administrative precedent setting out a clear definition of an "employee of a treaty investor" nor does the legislative history of section 101 (a) (15) (E) (ii) throw any light on the question. 

The pertinent State Department regulation (22 CFR 41.41) requires 

merely that an employee be "employed by a treaty investor in a responsible capacity". 

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The treaty in question is the Treaty of Friendship, Commerce and 

Navigation between the United States and Japan. It was signed in 

Tokyo, Japan on April 2, 1953 and entered into force on October 30, 

1953 (4 UST 2063; TT A S 2863). The pertinent portions of the treaty 

are Articles I and VIII, which read: 

Article L Nationals of either party shall be permitted to enter the territory of 

the other party and to remain therein : (a) for the purpose of carrying on trade 

between the territories of the two parties and engaging in related commercial 

activities; (b) for the purpose of developing and directing the operations of an 

enterprise in which they have invested or in which they are actively in the 

Process of investing a substantial amount of capital; and (c) for other purposes 

subject to the laws relating to the entry and sojourn of aliens. 

Article VIII. Nationals and companies of either party shall be permitted to 

engage, within the territories of the other party, accountants and other teehnieal 

experts, executive personnel, attorneys, agents and other specialists of their 

choice. Moreover, such nationals and companies shall be permitted to engage 

accountants and other technical experts regardless of the extent to which they 

may have qualified for the practice of a profession within the territory of such 

other party, for the particular purpose of making examinations, audits, and 

technical investigations exclusively for, and rendering reports to, such nationals 

and companies in connection with the planning and operation of their enterprises, 

and enterprises which they have a financial interest, within such territories. 

Applicant Kobayashi is to be the manager of the Japanese Dancing 

and Entertainment Department of the restaurant; applicant Doi is 

to be the manager of the Service Department. In an interview conducted. on May 16, 1963, an attempt was made to ascertain precisely the 

duties of these so-called managerial positions. The interview elicited 

only the information that Miss Kobayashi is to train and supervise the 

entertainers in Japanese art, culture and tradition. Miss Doi is to 

instruct and supervise 10 or More waiters and waitresses in the art of 

preparing and serving Japanese foods. 

These positions, so vaguely described in the record, are not the 

accountants, technical experts, executive personnel, attorneys, agents 

and other specialists contemplated by the Treaty. If anything, they 

are service personnel, hired at a rather meager salary ($200 a month) 

to assist in the operation of a restaurant. They will have little to do 

with directing the operationi of the enterprise. 

Even conceding, arguendo, that these positions could fit the category 

of "specialists" mentioned in the treaty, there remains the question of 

the applicants' ability to fill these positions. The record establishes 

only that they are entertainers of a type commodity referred to as line 

dancers. (Indeed, their original classification as persons of distinguished merit and ability under section 101 (a) (15) (H) (1) is 

highly questionable but is not in issue here.) The record is completely 

devoid of any evidence tending to show that these applicants have 

even slight experience in the managerial or executive field. 

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It is concluded that the applicants have failed to establish that they 

will be employed in the responsible capacity required by 22 CFR 

41.41 and that they are accordingly not properly classifiable as nonimmigrant employees of a treaty investor under section 101 (a) (15) 

(E) (ii). 

ORDER: It is ordered that the applications be denied. 

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