Interim Decision 4t1700 

MATTER OF FINAII 

In Deportation Proceedings 

A-13054549 

Decided by Board February 10, 1967 

Although respondent's business is that of an independent landscape contractor, 

since the evidence shows he is skilled and qualified in authentic Polynesian 

construction ; remodels and redecorates restaurants with Hawaiian-style 

thatch roofs ; has contracts for the construction of canoe houses, native houses, 

and buildings of historical interest amounting to opprosiroately $20,000; has 

an original investment of more than $1,000 in trucks and other equipment and 

employs one person in his business, he comes within -the exception of 8 (4 R 

212.8(b) (4) as "an alien Wno will engage in a commercial . . . enterprise in 

which he had invested or is actively in the process of investing a substantial 

amount of capital" ; therefore, he is exempt from the labor certification requirement of section 212(a) (14) of the Immigration and Nationality Act, as amended. 

CHARGE: 

Order: Act of 1952---Section 241 (a) ( 9 ).:(8 U.S.C. 1251 (a) ( 9) I—Failed to comply with conditions of non-immigrant status. 

ON HortAx.r or neoroaromv : ON BrilArr or Sourreg! 

Donald L. Ungar, Esquire Irvthg A. Appleman 

220 Bush Street Appellate Trial Attorney 

San Francisco, Calif. 94104 (Oral argument) 

(Brief submitted) 

The special inquiry officer, in a decision dated October 5,1966, grants 

the respondent's application- for adjustment of status under section 

245 of the Immigration and Nationality Act and certifies his order for 

final decision of the Board of Immigration Appeals. 

Respondent, a married male alien, 44 years of age, is a native and 

citizen of Tonga. He was admitted to the United States as a student 

on September 5, 1962. It is conceded that he is deportable as charged 

in the order to show cause. 

The respondent's application for relief under section 245 of the 

Immigration and Nationality Act is concerned with the issue of 

whether he is required to submit a certification from the Secretary of 

Labor pursuant to section 212(a) (14) of the Immigration and Nation86 
Interim Decision #1700 

ality Act, as amended. This issue was before us when we last considered 

the case on August 4, 1966. We noted on that occasion that the special 

inquiry officer's conclusion that the respondent is not required to have 

a labor certification because he was self-employed was rendered prior to 

the publication on July 23, 1966 of regulations setting forth the classes 

of aliens exempted from obtaining a certification (31 Fed,. Reg. 10021, 

8 CPR 212.8(b) ). We remanded the ease to the special inquiry officer 

for consideration of what effect, if any, the published regulation would 

have on respondent's application for adjustment of status and to enable 

the Immigration Service and respondent to make such further representations as they desire. 

The facts of the case are fully stated in the special inquiry officer's 

opinion of May 13, 1966. They establish that the respondent violated 

his student status by engaging in employment as a yardman earning 

$350 per month. Since 1964 the respondent has been engaged in landscaping enterprises as an independent contractor. According to the record, he has invested more than $1,000 in equipment to carry on this 

business. He advertises in newspapers and makes estimates upon request by prospective customers. He undertakes the project after the 

price has been agreed upon. He builds and thatches native buildings in 

Hawaii which are of particular value to those interested in attracting 

tourists. 

The record,contains evidence that the respondent has unique skills in 

the area of anthentic Polynesian construction and that these skills do 

not in any way compete with the available skills of United States citizens (Ex. 4). There is also evidence that the respondent is the only 

independent contractor qualified in Polynesian construction that could 

be obtained by the operator of a large tourist attraction (Ex. 4). He 

also remodels and redecorates restaurants with Hawaiian-style thatch 

roofs. Ho employs a resident alien in his construction business_ It is 

alleged that he has offers of contracts for similar construction and 

redecorating. 

Section 212(a) (14) of the Immigration and Nationality Act (8. 

U.S.C. 1182(a) (14) ) as amended by the Act of October 3, 1965 y 

 provides in part that an alien seeking to enter the United States for 

the purpose of performing skilled or unskilled labor is ineligible for a 

visa 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, willing, qualified 

and available at the time of application for a visa and admission to 

the United States to perform such labor at the place to which the alien 

is destined and (B), the employment of such aliens will not adversely 

affect the wages and working conditions of workers of the United 

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Interim Decision #1700 

States similarly employed. 8 CFR 212.8( b) interprets what amounts 

to the performance of skilled or unskilled labor referred to in Section 

212(a) (14) (supra). It reads in pertinent part: "The following members are not considered to be within the purview of section 212(a) (14) 

of the Act and do not require a labor certification : . . . (4) an alien 

who will engage in a commercial or agricultural enterprise in which he 

had invested or is actively in the process of investing a substantial 

amount of capital; . . ." 

The foregoing regulation raises the issue of what amounts to a 

"substantial amount of capital." The special inquiry officer is of the 

opinion that the term refers to an amount of capital which is substantial according to the enterprise under consideration, and that the 

term is not restricted to a monetary amount. The special inquiry officer 

concludes that the respondent has invested a substantial amount of 

capital for his particular business since the evidence establishes that 

he (respondent) lies contracts for the construction of Canoe houses, 

native houses, and buildings of historical interest amounting to some 

$30,000 or more; that the respondent has the equipment, the knowhow, and the facilities to carry on this commercial enterprise and that 

his original investment now amounts to considerably more than $1,000 

in trucks and other equipment. 

The Service takes the position that an alien who organizes and 

creates a commercial enterprise of his own with a small investment of 

capital that he has earned by performing skilled of unskilled labor 

cannot avoid the exclusion provisions of section 212(a) (14) unless the 

alien proves by tangible evidence that his business was established in 

good faith and that he has the ability and resources to continue and 

expand the enterprise. The Service maintains that there is no substantial evidence of record that the respondent is conducting a busineis of the magnitude that he alleges. The Service argues that there 

is only the respondent's testimony that he has contracts amounting to 

some $30,000 or more. The Service doubts the respondent's testimony 

that his investment has been steadily increased since he went into 

business. The Service seeks a remand of the case for additional evidenc6 

of the operation and volume of business the respondent now has. 

We find no basis for a remand of the case to the special inquiry 

officer. The record contains sufficient evidence for a decision on the 

merits. Our order of August 4, 1966 afforded the Service and the 

respondent an opportunity to reopen the proceeding for additional 

evidence. The Service, on August 30, 1966 and the respondent on 

August 25, 1966, advised the special inquiry officer that they had no 

objection to his consideration of the case without further hearing The 

case has been pending since the order to show cause was issued in 

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Interim Decision #17e0 

December of 1963. Evidence of the volume now grossed by the respondent is not essential for a final disposition of the issue before us. 

8 CFR 212.8 (b) (4) does not define the terms "commercial or agricultural enterprise" and "substantial amount of capital." We agree that 

an alien who seeks an exemption from the labor certification requirement of section 212(a) (14) has the burden: of establishing his good 

faith intention of engaging in that enterprise and his ability and resources to carry on the contemplated enterprise. The test of the alien's 

ability and resources to carry on the contemplated enterprise can not 

be measured by hard and fast rules or by the amount of capital he 

invests in the undertaking. It will -vary with the nature of the enterprise. Whether the contemplated. enterprise will be one that -has a 

reasonable chance of success can not be' tested in every case by the 

alien's ability or resources. There are certain risk factors associated 

with the establishing of any commercial or agricultural enterprise. We 

do not agree with the Service argument that a laboring background 

should be considered as a factor in judging the respondent's ability 

to carry on in his chosen field. This also would vary with the nature 

of the enterprise. There are many successful enterprises in the building industry whiCh were established by men with laboring backgrounds. 

The special inquiry officer concludes that as a matter of law the 

respondent has met the burden. of establishing that he is an alien 

who is engaged -in a .commerciabenterprise in which he has invested 

a substantial amount of capital and therefore comes within the exceptig•of 8 CFR 212.8(b) (4). We-affirm this conclusion. The respondent 

is eligible to receive an immigrant visa as he is exempted from procuring a labor certification by the provisions of 8 CFR 212.8 (b). Since 

it appears that an immigration visa is currently available under the 

quota of Tonga, we affirm the approval of the respondent's application 

for an. adjustment of staus pursuant to the provisions of section 245 

of the Immigration and Nationality Act. The Service request to 

remand the case to the special inquiry officer will be denied. Anappropriate. order will be entered. 

ORDER : It is directed that the order entered by the special inquiry 

officer on October 5, 1966 be and the same is hereby affirmed. The 

Service request to remand the case to the special inquiry officer is 

hereby denied. 

89