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 ofLabor 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 enablethe 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 donot 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 yprovides 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



### 87Interim 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 theopinion 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 andexpand 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



### 88

### Interim Decision #17e0December 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 goodfaith 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 natureof 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 investeda 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 toremand 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.

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