Interim Decision #2513 

' MATTER OF YARDEN 

'In Section 245 Proceedings 

A-20890467 

Decided by Regional Commissioner August 6, .1976 

In the absence of unusual'or outstanding equities, an application for adjustment of status 

under section 245 of the Immigration and Nationality Act wfil be denied as a matter of 

discretion where the labor certification supporting such application, or eligibility for 

exemption therefrom, was predicated on experience and/or income derived from employment held by applicant in violation of the immigration laws. 

ON BEHALF OF APPLICANT: David G. Stern, Esquire 

Choate, Hall & Stewart28 State Street 

Boston, Massachusetts 02109 

This matter is before the Regional Commissioner on certification 

pursuant to 8 CFR 103.4. The district director denied the application for 

adjustment of status under Section 245 of the Immigration and Nationality Act, as amended, on the ground that the alien failed to 

establish that he is exempt from the requirements of Section 212(a)(14) 

of the Act; and further, he has not established that his application 

merits favorable exercise of discretion by the Attorney General. 

The applicant, a 29 year old-native and citizen of Israel, was admitted 

to the United States on March 3, 1968, until September 2, 1968, as a 

nonimmigrant visitor for pleasure. He had neither requested nor received any extension of his authorized stay. In April., 1968, he accepted 

employment as an insurance salesman. He was subsequently employed 

as an automobile salesman from August, 1968, to February, 1970. He 

then accepted employment with the Y & D Auto Body, Inc., a company 

he purchased October 21, 1970, and which he has managed since that 

date. He initially applied for adjustment of status under Section 245 of 

the Act on June 29, 1973, as a nonpreference immigrant claiming 

exemption from the provisions of Section 212(a)(14) on the basis of his 

investment in the above-named company. The application was denied 

September 13, 1973, because a nonpreference visa number was not 

available at that time. On September 28, 1972, Y & D Auto Body, Inc., 

made -application to the Department of Labor for the certification re729 
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quired by Section 212(a)(14) requesting the applicant's services as an 

auto body man. Such application was denied February 11, 1974, on a 

finding that Ile wage offer of $6 per hour was below the prevailing wage 

rate of $7 per hour and that qualified resident workers were available. 

The instant application was filed June 6, 1974. Exemption from Section 212(a)(14) under the provisions of 8 CFR 212.8(b)(4) as an investor 

is again claimed. In support of his application, there have been submitted Form I-526, a bill of sale dated October 21, 1970, in the amount of 

$4,000 for the purchase of Y & D Auto Body, the Articles of Organization of Y & D Auto Body, Inc., cancelled checks, income tax returns, a 

property mortgage, bank letters, a lease agreement, and a Notice of 

Change of Corporate Officers. The Articles of Organization show that the 

company was incorporated for the purpose of "general auto and truck 

body repair and sale of damaged body automobiles and trucks." It is 

indicated that there are 5,000 shares of common stock with a par value of 

$2 per share. Joseph Yarden, the applicant, and Shifra. Yarden, his wife, 

since divorced, are shown as the only officers of the company. Under 

capital investments on Form 1-526, applicant's investment is shown as: 

cash, $3,000; tools and machinery, $18,000; and inventory of $2,000. 

In his decision, the district director states that the bill of sale indicates a payment of $4,000 was made for the purchase of the company; 

that further investment consisted of the purchase of equipment and 

material required to operate the business, and that the applicant failed 

to establish that he had at least one year of experience in any managerial capacity. It was further concluded that the money invested in the 

business was earned through the alien's illegal employment in the 

United States, and that the application did not warrant the favorable 

exercise of discretion by the Attorney General. 

Section 245 of the Act states: "The status of an alien other than an 

alien crewman who was inspected and admitted or paroled into the 

United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien 

lawfully admitted for permanent residence if (1) the alien makes an 

application for such adjustment, (2) the alien is eligible to receive an 

immigrant visa and is admissible to the United States for permanent 

residence, and, (3) an immigrant visa is immediately available to him at 

the time his application is approved." (Underscoring supplied). 

Section 2:.2(a) of the Act lists the classes of aliens who shall be 

ineligible to receive visas and shall be excluded from admission into the 

United States. Section 212(a)(14) provides for the exclusion of aliens 

"seeking to enter the United States, for the purpose of performing 

skilled or unskilled labor, unless the Secretary of Labor has determined 

and certified to the Secretary of State and to the Attorney General that 

(A) there are not sufficient workers in the United States who are able, 

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willing, qualified, and available at the time of application for a visa and 

admission to the United States and at the place to which the alien is 

destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working 

conditions of the workers in the United States similarly employed . . ." 

This section was incorporated into the Act by the Act of October 3, 1965, 

79 Stat. 911, to safeguard the livelihood of workers lawfully present in 

the United States. H. Rep. 745, 89th Congress, 1st Session (1965). 

Regulations to implement the amended statute provide that certain 

aliens are not considered to be within the purview of Section 212(a)(14). 

The applicant is seeking to establish that he qualified for the exemption 

from labor certigication contained in 8 CFR 212.8(b)(4) which states as 

follows: "An alien who establishes on Form 1-526 that he is seeking to 

enter the United States for the purpose of engaging in a commercial or 

agricultural enterprise in. which he has invested, or is actively in the 

process of investing, capital totaling at least $10,000, and who establishes that he has had at least one year's experience or training qualify , 

 ing him to engage in such enterprise." 

In his brief submitted pursuant to the notice of certification, counsel 

questions the district director's decision on several points, which we 

shall consider seriatim. First, it is stated that: "The decision makes 

many legislative and judicial assumptions, including the assumption that 

the Petitioner's self-employment in the United States constitutes unauthorized employment. Neither regulation nor judicial decisions are cited 

in support of that position." 

A nonimmigrant in the United States in a class defined in Section 

101(a)(15)(B) of the Immigration and Nationality Act as ,a temporary 

visitor for pleasure, may not engage in any employment. 8 CFR 

214.1(c). Applicant has been employed in the United States since April, 

1958. Such employment is illegal. Wei v. Robinson, 246 F.2d 729 (C. A. 

1957), cert. den. 355 U.S. 879 (1957); Matter of S. 8 I. & N. Dec. 574 

(1960); Matter of Wong, , 11I. & N. Dec. 704 (1966); Matter of Martinez 

and Londmito, 13 L & N. Dec_ 483 (1970) S. Rep. 1137, 82d Cong., 2d Sess. 

(1952). 

Exception is next taken to the statement that the applicant has failed 

to establish he possesses the one year of experience in a managerial 

capacity as required by the regulation. We agree with counsel that the 

record establishes applicant's employment in this capacity over the last 

five to six years. We do not believe, however, that it is proper in this 

case to grant an exemption from the requirements of Section 212(a)(14) 

by virtue of the applicant's experience gained or funds derived from 

employment while unlawfully in the United States. 

It is stated that the decision does not mention that the petitioner has 

had as many as eight employees, and when interviewed, was employing 

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four workers. This is not substantiated in the record nor is the contention that sa:aries paid by applicant have averaged over $40,000 per 

year. The company's income tax returns for 1972 and 1973; the only 

evidence present, show salaries paid for those years as $29,850 and 

$18,735, respectively. 

It is contended that, in addition to the initial investment of $4,000, 

amounts in excess of $10,000 have also been expended for purchase of 

capital goods. We have only the applicant's statement in this regard 

since it is impossible to determine from the checks submitted precisely 

what they were used to purchase. These checks were written between 

February, 1')72, and May, 1974. Many of the later checks are for uniform amounts to banks such as would be used to pay a loan. The balance 

could have been written in the normal day-to-day transactions of a 

business or represent re-investment of money earned. Counsel states 

that applicant has formed a Massachusetts corporation and made an 

additional investment of $5,000 while negotiating for distribution rights 

for automobile paint. To support his claim, there is a copy of Articles of 

Organization dated April 9, 1975, for Northeast Auto Paint Distributors, Inc., showing 2,000 shares of stock with a par value of $1 per 

share listing the applicant as president and a bank 'statement in the 

name of the -company showing a balance of $4,450. With regard to 

applicant's real estate holdings, we will abide by the finding in the 

Matter of Heitland, 14 I. & N. Dee_ 589 (1974), which finds that land 

holdings and savings bank accounts do not qualify as investments within 

the contemplation of the regulation. An alien who asserts that he qualifies 

for the "investor" exemption for labor certification has the burden of 

establishing his claim through unambiguous proof and doubt should be 

resolved against the "investor" claimant. Matter of Ahmad, 15 I. & N. 

Dec. 81, (1974). In the instant case, it is determined that the applicant has 

failed to establish that he qualifies under 8 CPR 212.8(b)(4) as one who 

has invested or is actively in the process of investing capital totaling at 

least $10,000. 

Additionaly, an alien seeking discretionary relief under Section 245 

of the Act bears the burden of establishing that he is statutorily eligible 

for such relief and that discretion should be exercised in his behalf. 

Matter of Arai, 13 I. & N. Dee. 494, (1970). The applicable statute does 

not contemplate that all aliens who meet the required legal standards 

will be granted adjustment of status to that of a permanent resident 

since the grant of an application for adjustment of status is a matter of 

discretion and of administrative grace, not mere eligibility. Matter of 

Ortiz-Prieto; 11 I. & N. Dec. 317, (1965). Thus, assuming arguendo that 

the applicant is exempt from the labor certification of Section 212(a)(14), 

his application is denied as a matter of discretion. He -has- been in 

violation of the immigration laws of the United States since April, 1968. 

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His disobedience of our laws commenced only one month after he arrived in this country as a visitor. His total work experience was acquired while he was illegally in the United States—in violation of his 

status as a visitor for pleasure and thus not permitted to be employed. 

He has no unusual or outstanding equities. In the absence of unusual or 

outstanding equities, an alien will not as a matter of administrative 

discretion be granted permanent resident status on the basis of a labor 

certification issued under Section 212(a)(14) of the Act or exemption 

therefrom, which is predicated on employment while unlawfully in the 

United States. 

It is ordered that the decision of the District Director be and same is 

hereby affirmed. 

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