Interim Decision .#1835 

MAIVIGR of SONZGAWA 

In Visa Petition Proceedings 

A-14616469 

Decided by Regional Commissioner August 14, 1967 

Approval of a visa petition filed by the owner and proprietress of a custom dress 

and boutique shop to accord beneficiary preference classification under section 

203(a) (6) of the Immigration and Nationality Act, as amended, as an assistant 

clothes designer, is not precluded by the fact that petitioner's net profit for 

the previous year is not commensurate with the salary specifications of the 

labor certification where it is found that petitioner's business has increased ; 

that her expectations of continued increase in business and profits are res. 

sonable expectations; and it has been establighed that she has the ability to 

meet the wages stipulated in the labor certification. 

ON BEHALF or PzwgzIONER: Sidney M. Kaplan, Esquire 

Room 818 

756 South Broadway 

Los Angeles, California 90014 

Discussion: This case comes forward on appeal from the decision 

of the District Director, Los Angeles who denied the petition on May 

31, 1987 in that it had not been established that the petitioner could 

meet the wage requirements of the position certified by the Secretary 

of Labor. 

Oral argument was requested and granted. Petitioner appeared 

with counsel as scheduled. 

The petitioner is the owner and proprietor of a fashionable "custom 

dress and boutique" shop in Pasadena, California, specializing in 

women clothes of oriental fabric and design. The shop was established in 1956 and does an annual gross business of about $100,000. In 

addition to the petitioner, there are four regular employees and from 

one to four part-time employees. Petitioner has been doing her own 

designing and creations and now seeks the services of the beneficiary 

as an "assistant designer for oriental arts". Form ES-575B, "Job 

Offer for Alien Employment", describes the duties of the position as 

follows: "Has to be able to do embroidery, beading, speeial handwork, 

designing, pattern work cutting, fitting, and finishing. She will be 

612 
Interim Decision #1835 

working in an air conditioned shop, working with modern equipment, 

and in nice surroundings." The education and training requirements 

for the position are described as, "She has to have at least five years 

experience in dress designing, pattern making, and cutting. Must also 

be able to do embroidery and fitting." The salary offered is $3.00 an 

hour for a 40 hour week. 

The certification required by section 212(a) (14) of the Immigration and Nationality Act, as amended, as to the availability of like 

labor in the United States has been issued by the Department of Labor, 

which titled the poition certified as "clothes designer" with a code 

142.081. 

The beneficiary is a 35-year-old single female, a native and citizen of 

Japan. She was admitted to the United States at Honolulu, Hawaii 

as a visitor for business on February 6, 1965 as a representative of 

a Japanese import firm to research United States markets for products attractive to Japanese business. She subsequently applied for a 

change of nonimmigrant status to that of a student which was denied 

and beneficiary returned to Japan in September 1966. 

Evidence presented shows that the beneficiary graduated from high 

school in Japan in 1951 and that she attended the Musashino Dress 

Making Women's College in Tokyo from October 1955 to September 

1957 completing a course in professional techniques of dress making, 

cutting, and embroidery and also fitting, and was awarded a graduation diploma on March 31, 1958. On March 31, 1957 she was awarded a 

certificate of merit for outstanding work by the school. She also presented a certificate showing completion of a "designers course" from 

the Dress Makers Women's College, Tokyo on March 30, 1959 and a 

diploma showing completion of a two-year course in oriental interior 

design from Nippon Design College in Tokyo on March 25, 1964. She 

was issued an instructor's license in dress making on March 28, 1959 by 

the Japanese Department of Labor in Tokyo. 

From 1957 to March 1962 she was a part-time instructor in. dress 

making at the Pair Dress in Tokyo, from April 1959 to August 1962 

she was also employed by Shinobu Dress Making in Tokyo as chief 

designer where she was employed in designing, cutting and fitting 

custom made clothes. From September 1962 to January 1965 she was 

employed by K. K. Esu in Tokyo as a consulting executive designer 

for ready made manufactured clothes. Here she did original designing 

and pattern making and worked as a supervisor and trainer of other 

employees. From the evidence submitted it is well established that the 

beneficiary is qualified for performance of the duties of the position. 

Section 203(a) (6) of the Immigration and Nationality Act, as 

amended, provides for the availability of visas to qualified immigrants 

613 
Interim Decision #1835 

who are capable of performing skilled or unskilled labor, not of a 

temporary or seasonal nature, for which a shortage of employable amd 

willing persons exist in the United. States. 

Section 204(a) of the Act provides that any person desiring and 

intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203(a) (6) may file 

a petition with the Attorney General for such classification. 

The term "desiring and intending to employ" contemplates not only 

the physical facilities to utilize such services but the financial ability 

to meet the wage requirements of the certified job offer. 

The District Director in his denial order stated : 

Tour 1906 income tax return indicates a net business profit of $280. In your 

application to the Secretary of Labor for the certification required by section 

212 (a) (14) you alleged that the beneficiary will be employed eight hours per day, 

40 hours per week, at a salary of $3.00 per hour. Ton will then be obliged to 

pay the beneficiary a yearly wage of $6,240 which is considerably in excess of 

the net profit for 1986. 

Petitioner has been in business in a competitive field for over 11 

years. There is no evidence that she will not continue in business for 

many more years. The fact that she is seeking the services of an oriental clothes designer is in itself evidence that she plans to continue in 

the business. Petitioner has been making a living for herself and 

employing from four to eight employees without any evidence of financial difficulties. She has admitted that 1966 was not a good year. In 

that year petitioner changed to a better location, and for five months 

paid double rent; on her old place and on her new place. There were 

large moving costs and also a period of time when she was unable todo regular business. She has presented a financial statement prepared 

by an accounting firm in Pasadena date& May 31, 1967 which shows• 

that the petitioner from January 1, 196/ to May 31, 1967 has made a 

net profit of $4,774. Petitioner states that with the addition of an 

authentic oriental designer from Japan she will substantially increase 

her business not only in the actual number of clients but also to the 

type of customer who is willing to pay a higher price for authentic 

Japanese designs and patterns. The petitioner's shop is well recognized in Pasadena. The dress shop was the subject of a news article 

in a fashion magazine which stated in part : 

It's exciting to discover a new designer, and if you've never driven to 606 

Colorado Blvd. in Pasadena, you have a treat in store. This is the headquarters 

of Sow Kaneko, couturiere designer, master craftsman, and good friend of her 

hundreds of patrons. 

How Kaneko began her fashion career doing free lance designing for Saks 

Fifth Avenue, Marshall Fields and Bullock's Wilshire, but now devotes herself 

exclusively to her custom stndio in Pasadena. She uses the Oriental concept 

614 
Interim Decision #1835 

of Shibui as the theme of all her designs. Shibui is a Japanese word with nuances 

of meaning . . . lovely, understated, beautiful . . . and, certainly, these adjectives apply to her work. 

On appeal petitioner presented her income tax returns for 1966 

showing that she paid over $19,000 in wages to four regular employees 

and four part-time employees. She presented evidence in the form of a 

scrapbook showing that she is well known for her designs and fashions 

and outstanding in her field. Time and Look magazines have published 

full colored pages of her creations as has the Fashion Service Review as 

well as numerous other fashion magazines. Petitioner has made most of 

the gowns for the Miss Universe of the Long Beach beauty pageant. She 

has as clients movie actresses and society matrons. Her clients have 

been inoluded in the lists of the best dressed California women. Petitioner makes numerous .appearances at design and fashion shows 

throughout the United States lecturing on fabric, design and techniques. She also lectures at colleges and universities in California and 

at home economic institutes on these subjects. She received fees for the 

appearances which are not included in the income of her store. Her 

reputation as a fashion designer and couturiere makes her in demand. 

Petitioner states that because she must on occasion be away from her 

business, she is in urgent need of the services of the beneficiary. Her 

business has increased at the new location and she is unable to keep up 

with the demands of the work. 

The fact that petitioner was able to show only a net profit of $280 

for the calendar year of 1966 does not in itself preclude the beneficiary 

from establishing that she will be able to meet the conditions of the 

certification in the "Job Offer". After careful consIderation of all the 

above circumstances, we find that the petitioner,' S expectations of continued increase in business and increasing profits are reasonable 

expectations and that it has been established that she has the ability 

to pay the beneficiary the stipulated wages and meet the conditions 

of the certification. We find that the beneficiary is eligible for the 

classification sought. The appeal will be sustained and the petition 

granted. 

ORDER: It is ordered that the appeal be sustained and the petition granted. 

615