Interim Decision #2777 

MATTER OF KUMAR 

In Deportation Proceedings 

A-21329561 

Decided by Board February 20, 1980 

(1) Mere fact that an investor filed an adjustment of status application prior to October 

7, 1976, does not result in his being thereafter entitled to have all subsequent investments reviewed under the provisions of 8 C.F.R. 212.8(b)(4) in effect prior to that date. 

(2) Where the original application for adjustment of status as an investor does not 

evidence eligibility for investor status under the regulatory standards in effect prior to 

October 7, 1976, one cannot claim any lingering entitlement to have en investment 

made after that date reviewed under the pre-regulatory change standards. 

(3) An alien, who had invested in a clothing business but who failed to establish that 

that investment met the requirements for an investor labor certification exemption 

under 8 C.F.R.212.8(b)(4) in effect prior to October 7,1976, held not entitled to have his 

subsequent investment in a motel, made after that date, considered under the'earlier, 

more lenient version of the regulation. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2), I&N Act [8 U.S.C. 1251(a)(2)]— 

Nonimmigrant visitor, remained longer than authorized 

OH Enum,r OF RESPONDENT: Jack I Kaiser, Require 

115 Sansome Street 

Suite 1111 

San Francisco, California 94104 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members 

In a decision dated October 10, 1979, 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, 8 U.S.C. 1255, but granted him the privilege of voluntary 

departure. The respondent appeals from the denial of adjustment of 

status. The appeal will be dismissed. 

The respondent, a 27-year-old native and citizen of India, resided in 

England from at least January 1973 until March 1976. On March 15, 

1976, he entered the United States using a nonimmigrant visitor's visa. 

Within the first 25 days after entry, however, the respondent made 

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Interim Decision #2777 

arrangements to invest in a clothing business, contacted his father to 

send money, received the requested funds (the first monies by check 

dated March 30, 1976), made a deposit on a store lease, and started 

ordering inventory for the store. By April 15, 1976, the respondent had 

executed the formal lease for the store and four days later he signed 

the documents necessary to apply for adjustment of status (Form I485, "Application for Status as Permanent Resident"; Form 1-526, 

"Request for Determination that Prospective Immigrant is an 

Investor"). 

The adjustment application was ultimately denied by the District 

Director on January 16, 1979, because the respondent had liquidated 

his interest in the clothing store in August 1977. Deportation proceedings were then instituted against the respondent after he failed to 

voluntarily depart within the time allowed. 

At hearings held in March and August 1979, the respondent conceded deportability, but sought to reapply for adjustment as an investor based on a motel he had acquired in June 1977.' The respondent 

apparently contended that this second investment should be reviewed 

under the requirements of 8 C.F.R. 212.8(b)(4) in effect prior to October 

7, 1976. Under the earlier version of the regulation, an applicant had to 

have invested, or be actively in the process of investing, capital totaling at least $10,000 in a business in which the applicant had had at 

least one year of experience or training. As of October 7, 1976, however, 

an applicant for investor status has had to demonstrate that he has 

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

least $40,000 in an enterprise in the United States of which he will be a 

principal manager. That enterprise must also employ a person or 

persons in the United States who are United States citizens or aliens 

lawfully admitted for permanent residence, exclusive of the alien, his 

spouse and children. 

The immigration judge denied the adjustment application finding 

that the respondent's investment in the motel failed to satisfy the 

eligibility requirements set forth in Matter of Heitland, 14 I&N Dec. 

563 (BIA 1974), gird, 551 F.2d 495 (2 Cir. 1977), cert. denied, 434 U.S. 819 

(1977). The immigration judge further stated that the application 

would be denied in the exercise of discretion based on his finding that 

the respondent had entered the United States as a nonimmigrant 

visitor with a preconceived intent to remain permanently. 

The respondent appeals both from the finding of ineligibility for 

adjustment of status and from the adverse exercise of discretion. As 

' The respondent invested $20,000 in cash in the motel and signed a 25-year note for the 

remaining $100,000 of purchase price. The District Director evidently was not advised of 

this investment prior to January 1979. 

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we find that the respondent is not entitled to have his investment in the 

motel tested under the provisions of 8 C.F.R. 212.8(b)(4) in effect prior 

to October 7, 1976, and as this investment clearly does not satisfy the 

$40,000 capital test required under the present regulatory provisions, 

the appeal will be dismissed. 

The mere fact that an "investor" may have filed an adjustment 

application prior to October 7, 1976, does not result in his being 

thereafter entitled to have all subsequent investments reviewed under 

the provisions of 8 C.F.R. 212.8(b)(4) in effect prior to that date.' This is 

particularly true where the original application does not evidence 

eligibility for investor status under the earlier standards. One cannot 

claim a lingering entitlement to have an investment made after the 

regulatory change reviewed under pre-regulatory change standards 

when the initial application never satisfied those earlier standards. 

Here, the respondent's original investment in the clothing business 

could not qualify him for an exemption from the labor certification 

requirements even under the less restrictive standards of 8 C.F.R. 

212.8(b)(4) in effect prior to October 7, 1976. The investment was not of 

an amount adequate to insure that the respondent's primary function 

was not as a worker, nor did it expand job opportunities so as to offset 

any adverse impact of the respondent's employment. 3 See Matter of 

Heitland, supra. See also Matter of Wang,16I&N Dec. 711 (BIA 1979). 

Therefore, he cannot now claim any entitlement to have his present 

investment tested under the provisions of 8 C.F.R. 212.8(b)(4) in effect 

prior to October 7, 1976. 

The respondent has accordingly failed to establish eligibility for 

investor status and the appeal from the denial of his adjustment 

application will be dismissed for that reason. We further concur, 

however, in the immigration judge's finding that the respondent is not 

deserving of such relief in the exercise of discretion as we are not 

satisfied on this record that he did not enter the United States in 1976 

with a preconceived intent to remain as a permanent resident. See Von 

Pervieux v. INS, 572 F.2d 114, 118 (3 Cir. 1978), and the cases cited 

therein. 

ORDERS The appeal is dismissed. 

1 1n fact, merely because the filing was made prior to October 7,1976, does not insure 

that the initial investment underlying that application will be tested under the "$10,000" 

standard. If the application was filed in time to meet the October 7, 1976, deadline, but 

the evidence establishing the investment originated after that date, the investment will 

be tested under the current standards. See Matter of Heidari, 16 I&N Dec. 203 (BIA 

1977). 

' The respondent's profit and loss statements for this business for the period from its 

inception through November 1976 indicate that there were no employees other than the 

respondent. The balance sheets reflect that there were no expenses for "wages." 

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FURTHER ORDER1 Pursuant to the immigration judge's order 

the respondent is permitted to depart from the United States voluntarily within SO 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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