Interim Decision #2776 

MATTER OF LETT 

In Deportation Proceedings 

A-12852618 

Decided by Board March 18, 1980 

(1) Management of his investment by a qualified investor deemed exempt from the labor 

certification requirement of section 212(a)(14) of the Act, S U.S.C. 1182(2)(14), does not 

constitute employment within the contemplation of that section of the Act and he is 

not precluded from adjusting his status under section 245(c)(2), 8 U.S.C. 1255(c)(2), 

relating to unauthorized employment. 

(2) An unsuccessful applicant for the investor exemption provided by 8 C.F.R. 

2122(b)(4) runs the risk that work performed in connection with his nonqualitied 

investment may be considered unauthorized employment for purposes of the section 

245(c)(2) adjustment preclusion. Matter of Tong, 16 I&N Dec. 593 (BIA 1978), 

distinguished. 

(3) An alien found deportable by virtue of being excludable at entry under section 

212(a)(9) of the Act, 8 U.S.C. 1182(a)(9) must include an application for a 212(h) waiver 

• of inadmissibility (Form I-601), supported by a showing of extreme hardship to his 

citizen or lawful permanent resident spouse, parent, son or daughter, in order to be 

entitled to reopening for adjustment of status. 

CHARGE: 

' Orden Act of 1952—Section 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1)]—Alien excludable 

at entry for having been convicted of a crime involving moral 

turpitude under section 212(a)(9), I&N Act [8 U.S.C. 1182(a)(9)] 

ON BEHALF OF RESPONDENT: ALBERT J. REISS, ESQUIRE 

Walters & Constanzo Associates 

100 Biscayne Boulevard North 

Suite 1001 

Miami, Florida 33132 

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

The respondent appeals from the June 8, 1.979, decision of the immigration judge denying his motion for reopening in order to apply for 

adjustment of status. The appeal will be dismissed for a different 

reason than the immigration judge's conclusion. 

The respondent is a native and citizen of Canada. He entered the 

United States on November 1, 1976, as a nonimmigrant visitor. On May 

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4, 1977, he conceded deportability under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), for being excludable at entry by virtue of his having been convicted in Toronto, Ontario 

on November 28, 1957, on six counts of false pretenses under Section 

304A of the Criminal Code of Canada (Ex. 1) (Tr. p. 2). On April 26, 

1978, he submitted an application for adjustment of status (Form 

1-485) supported by a request for determination as an investor (Form 

1-526) seeking an exemption from the labor certification requirement 

of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14). That application 

was treated as a motion to reopen pursuant to 8 C.F.R. 242.22. 

The immigration judge denied the motion ruling that the respondent's management of his investment constituted unauthorized selfemployment which barred him from adjusting his status under the 

preclusion from adjustment prescribed by section 245(c)(2) of the Act, 

8 U.S.C. 1255(c)(2). The immigration judge relied on our decision in 

Matter of Tong, 16 MN Dee. 593 (BIA 1978), where we held that a 

beneficiary of an approved relative visa petition, who was not an 

immediate relative of a United States citizen and engaged in 

unauthorized self-employment, was engaged in unauthorized employment. This precluded him from having his status adjusted under 

section 245(e)(2) of the Act. The immigration judge erred in extrapolating the Tong rationale to an applicant for an exemption from the 

labor certification requirement as an investor. 

The respondent properly pointed out the clarification by the Service's Assistant Commissioner for Adjudications stating that selfemployment without prior authorization does not have the same 

meaning as unauthorized and does not preclude adjustment of status 

under section 245(c)(2) in the case of a qualified nonpreference havestor. An unsuccessful applicant for an investor exemption from the 

labor certification requirement runs the risk that work performed in 

connection with his nonqualifying investment may be considered 

unauthorized employment. If, however, the applicant is deemed a 

qualified investor of an enterprise with capital exceeding $40,000 and 

with qualified employees, his management work does not constitute 

employment within the contemplation of section 212(a)(14) of the Act, 

8 U.S.C. 1182(a)(14). 

Nevertheless, the immigration judge properly denied the motion to 

reopen. A motion to reopen must be supported by prima facie evidence 

of eligibility for the relief sought. Matter of Lain, 14 I&N Dec. 98 (BIA 

1972); Matter of Sipus,14 I&N Dec. 229 (BIA 1972). The respondent was 

found deportable for being excludable at entry under section 212(a)(9) 

of the Act, 8 U.S.C. 1182(a)(9). He remains excludable. In order to 

obtain relief from his excludability he must submit an application for 

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212(h) waiver (Form 1-601) supported by a showing of extreme hardship to the respondent's United States citizen child. Without such an 

application the motion to reopen lacked prima facie evidence of eligibility for adjustment of status. Accordingly, the appeal will be dismissed without prejudice to a future motion with the proper 

documentation. 

ORDER The appeal is dismissed. 

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