Interim Decision #2488 

MATTER OF CHIANG 

In Deportation Proceedings 

A-18504376 

Decided by Board July 30, 1075 

Respondent, an applicant for adjustment of status under section 295 of the Immigration 

and Nationa:ity Act, as amended, who seeks exemption from the labor certification 

requirement of section 212(a)(14) of the Act under the provisions of 8 CFR 212.8(b)(4) as 

an investor in one company, and who holds with another company an unrelated full-time 

job for which he has not obtained a labor certification, would be ineligible for exemption 

from the labor certification requirement as an investor even if he could submit adequate 

proof of his iivestment since a grant of "investor" status to such an alien who holds an 

unrelated full-time job in competition with American labor would.circumvent the labor 

certification :-equirements of the statute. 

CHARGE: 

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

remained longer than permitted, 

ON BEHALF OF RESPONDENT: Hiram W. Ewan, Esquire 

840 North Broadway, Suite 200 

Los Angeles, California 90012 

In a decision dated December 14, 1972, the immigration judge found 

the respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality 

Act, and granted him the privilege of departing voluntarily from the 

United States in lieu of deportation. The respondent has appealed from 

that decision. The appeal will be dismissed. 

The alien respondent is a native and citizen of China. At the hearing, 

he conceded deportability. The only issue on this appeal concerns the 

respondent's application for adjustment of status as an alien who is 

exempt from the labor certification requirements of the Act by virtue of 

the "investor" exemption contained in 8 CFR 212.8(b)(4). 

The respondent entered the United States in 1969 as a nonimmigrant 

student. Shortly thereafter, in violation of his student status, he took 

employrriFolt with the Global Marine Company as an accountant. The 

respondent was still employed by the Global Marine Company at the 

time of the :nearing, earning $805 per month. No labor certification for 

such employment was obtained. 

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Interim Decision #2488 

The respondent claims to have invested in an enterprise known as the 

California Herb Tonic Company. The exact nature of this business is 

somewhat unclear from the record. The only evidence of the alleged 

investment is an unaudited balance sheet, prepared by the respondent 

himself, and a City of Los Angeles Business Tax Statement. 1 

The respondent formally presented his "investor" claim prior to the 

1973 amendment of 8 CFR 212.8(b)(4). He is therefore entitled to have 

his claim judged by whichever formulation of the regulations is more 

favorable to him. Matter of Heitland, 14 L & N. Dec. 563 (BIA 1974); 

Matter of Ko, 14 I. & N. Dec. 349 (Dep. Assoc. Comm. 1973). However, 

the respondent's "investor" claim is patently inadequate to qualify 

under either form of the regulation. 

With respect to the pre-1973 regulations, the respondent has not 

established either that his investment tends to expand job opportunities 

or that the investment is of an amount adequate to insure that the 

alien's primary function will not be as skilled or unskilled laborer. See 

Matter of Heitland, supra. With respect to the present form of the 

regulations, the respondent has not met the standards of proof set forth 

in Matter of Ahmad, 15 I. & N. Dec. 81 (BIA 1974), nor has he 

demonstrated any likelihood that he could meet them. 

Finally, even if the respondent could submit adequate proof of his 

investment, we would still find him to be statutorily ineligible for 

adjustment of status, because of his employment with Global Marine 

Company for which no labor certification has been obtained. InMatter of 

Pfahler, 12 I. & N. Dec. 114 (BIA 1967), we held that where an alien 

applicant for admission was, coming to the United States with labor 

certification for one job, but was planning on obtaining a second job, it 

was incumbent upon him to obtain labor certification for the second job 

as well. We believe that the same rationale should be applied to one 

seeking the "investor" exemption from the labor certification requirement- of the Act. We have stated that the "the 'investor' exemption 

contained in 8 CFR 212.8(b)(4) should not become a means of circumventing the normal labor certification procedures for an ordinary skilled 

or unskilled laborer." Matter of Ahmad, supra. To grant "investor" 

status to an alien who holds an unrelated full -time job in competition 

with American labor would be to countenance the very type of evasion 

of the labor certification procedures that we were concerned with in 

Matter of Ahmad. 

The immigration judge's decision was correct. The appeal will be 

dismissed. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the re- 

' The latter has the respondent's name written in over the crossed out name of his 

"partner's" former spouse. 

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spondent is permitted to depart from the United States voluntarily 

within 90 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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