Interim Dacision #2354 

MATTER OF LT.Th 

In Deportation Proceedings 

A-19036861 

Decided by Board March 18, 1975 

In order for en alien to qualify for exemption from the labor certification requirement of 

section 212:a)(14) of the Immigration and Nationality Act as an investor under 8 CFR 

212.8(b)(4), he must be actively in the process of investing at least $10,000 in a business. 

Conditional intent to make the investment is not sufficient under the regulation. The 

record is remanded to the immigration judge for further proceedings to permit respondent opportunity to further document his claim. 

CHARGE: 

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

longer. 

ON BEHALF OF RESPONDENT: ON REHATIP or SERVICE 

Elmer E. Poston, Esquire David L. Milhollan 

770 Kapiolani Blvd. Appellate Trial Attorney 

Honolulu, Hawaii 96813 Gary Y. Fujiwara 

Acting Trial Attorney 

The alien respondent has appealed from the September 29, 1972 

decision of an immigration judge in which the respondent was found 

deportable, was denied adjustment of status under section 245 of the 

Immigration and Nationality Act, and was granted the privilege of 

voluntary departure. The record will be remanded for further proceedings. 

At the hearing below, counsel for the respondent attacked the manner 

in which these proceedings were instituted. However, as was acknowledged by counsel at oral argument, and as was set forth in the acting 

trial attorney's brief, the Service complied with the pertinent regulations in serving the order to show cause on the respondent. The respondent has not been denied due process. 

The respondent is a native and citizen of Tonga. He has conceded 

deportabilLy as a nonimmigrant visitor who has remained beyond the 

authorized length of his stay, and the only issues on appeal involve his 

application for section 245 relief. 

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The respondent is seeking adjustment of -status as a nonpreference 

immigrant, He claims that he qualifies for an exemption from the labor 

certification requirements of section 212(a)(14) as an "investor" within 

the meaning of 8 CFR 212.8(b)(4). The respondent formally presented 

his "investor" claim prior to the 1973 amendment of the regulation. His 

claim will therefore be judged by whichever formulation of the regulation is more favorable to him Matter of Ko, 14 I. & N. Dee. 349 (Dep. 

Assoc. Comm. 1973); Matter of Heitland, 14 I. & N. Dee. 563 (BIA 

1974). 

Prior to his visit to the United States, the respondent had been a 

merchant and had resided in American Samoa. The respondent sold his 

businesses in American Samoa before journeying to the United States. 

His purpose in coming here was to obtain medical treatment for his son, 

a native of American Samoa. 

The respondent operates a landscape and yard service in Hawaii. He 

commenced this business with an investment of approximately $7,000. 

At the date of his hearing, he evidently had added to this initial investment, but had still devoted less than $10,000 to the enterprise. He 

employs two United States citizen laborers, and he appears to have 

accumulated over $9,000 which he plans also to invest in the business 

provided he receives adjustment of status. The respondent contends 

that he is "actively in the process" of investing these additional funds, 

and that this amount must be added to his actual investment in the 

business to determine whether he qualifies under the regulation. 

Under either formulation of the "investor" regulation, capital which is 

"actively in the process" of being invested may be employed in computing the amount of the alien's investment. This respondent, however, has 

not committed his new funds to the business; he simply intends to 

purchase new equipment should he receive status as a permanent resident. While we understand the respondent's hesitancy in acting in the 

face of uncertainty, such a "conditional intent" to invest does not qualify 

under 8 CFR 212.8(b)(4). 

We shall not attempt to set forth a complete definition of this phrase. 

However, we hold that an alien is not "actively in the process" of making 

an investment if he merely possesses uncommitted funds which he 

intends to devote to his enterprise in the event that he receives adjustment of status under section 245. Since the amount of the respondent's 

investment, as reflected in the record, is under $10,000, he cannot 

qualify as an "investor" under the present version of the regulation. 

The respondent predicated his "investor" claim on our decision in 

Matter of Finau, 12 L & N. Dec. 86 (BIA 1967), which was decided 

under the earlier version of the regulation. However, in Matter of 

Heittand, supra, we overruled Finau. Furthermore, this case arose 

prior to Matter of Ahmad, 15 L & N. Dee. 81 (BIA 1974), and the 

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respondent Las not sufficiently documented his "investor" claim within 

the contemplation of that decision. 

We shall remand the record to the immigration judge in order to give 

the respondent the opportunity to further document his investment, and 

in order to permit the immigration judge, to determine whether the 

respondent may qualify as an "investor" under the approach set forth in 

Matter of Heitland, supra. 

ORDER: The record is remanded to the immigration judge for 

further proceedings. 

Chairman David L. Milhollan abstained from consideration of this 

ease. 

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