Interim Decision #2313 

MATTER OF LAIGO 

In Deportation Proceedings 

A-20026816 

Decided by Board August 13, 1974 

A treaty investor is precluded from engaging in unauthorized employment by the provisions of both 8 CFR 214.1(c) and 8 CFR 214.2(e). A treaty investor engaged in the 

development of a cultural and trade center, is deportable under section 241(a)(9) of the 

Immigration and Nationality Act, as amended, as one who has failed to maintain status 

where he engaged in and received substantial commissions for the sale of cemetery 

plots. 

CHARM 

Order:. Act of 195Z—Section 241(a)(9) [8 U.S.C. 1251(4)(9)1—Nonimmigrant changed 

to another nonimmigrant status—failed to comply with conditions of changed status. 

ON BEHALF or RESPONDENT- ON BEHALF OF SERVICE: 

Esther M. Kaufman, Esquire Paul C. Vincent 

1823 'L' Street, N.W. Appellate Trial Attorney 

Washington, D. C. 20036 

Frederick A. Nervo, Esquire 

995 Market Street, #1018 

San Francisco, California 94103 

The alien respondent has appealed from the September 15, 1973 

decision of an immigration judge in which the respondent was found 

deportable and was accorded the privilege of voluntary departure. The 

appeal will be dismissed. 

The respondent is a native and citizen of the Republic of the Philippines. She was admitted to the United States in August of 1970 as a 

nonimmigrant visitor. In March of 1971 her nonimmigrant status was 

changed to treaty investor. There is no issue in this case regarding the 

propriety of that change of status. The only questions presented here 

concern whether the respondent is deportable under section 241(a)(9) of 

the Immigration and Nationality Act as a nonimmigrant who has failed 

to comply with the conditions of her treaty investors status. 

The Immigration and Naturalization Service alleged that the 

respondent violated the conditions of her status by accepting employ65 
Interim Decision #2313 

ment for pay as a cemetery plot salesperson. The respondent concedes 

both that she received substantial commissions for the sale, on a "preneed" basis, of cemetery plots, and that this sales work was not within 

the scope of her activities as an investor. However, she challenges the 

finding of deportability on two grounds. First, she argues that a treaty 

investor is not totally precluded from engaging in employment which is 

outside the province of an investment, and second, she contends that the 

circumstances surrounding her sales work were such that her actions 

should not be deemed a violation of the conditions of her status. 

The respondent is evidently a woman of considerable wealth. She 

was, and perhaps still is, active in the real estate business in the 

Philippines. Her principal endeavors in the United States relate to 

several corporations which she appears to control and which are engaged in the development of a Philippine cultural and trade center in 

San Francisco. She asserts that her involvement in the cemetery plot 

business arose out of a strike which affected burials in the San Francisco 

-area. 

The respondent's testimony was to the effect that several families of 

Philippine ancestry contacted her in an attempt to have deceased relatives interred during the course of the strike. The respondent searched 

and found a cemetery whose operations had not been suspended. She 

thereafter became aware of a lack of adequate planning for death within 

the Filipino community in the San Francisco area and began speaking at 

Filipino gatherings, stressing the desirability of purchasing cemetery 

plots on a "pre-need" basis. She evidently distributed contracts at the 

gatherings, and occasionally, if specifically requested, she would visit 

the home of a prospective purchaser in order to assist in the preparation 

of the contract. 

The respondent maintains that she engaged in this activity as a 

service to her community. She claims that most of her working hours 

were devoted to the development of her investment, and that she spent 

at most two to three hours a week on cemetery plot sales work. The 

respondent earned commissions of approximately $14,000 for six 

months' sales work in 1971, approximately $21,000 for eight months' 

work in 1972:and approximately $900 for two and one half months' work 

in 1973. 1Although she earned these large commissions from her sales 

work, the respondent maintains that she did not consider herself to be 

employed in this field. She, testified that she was unaware that this 

activity could be considered a violation of the conditions of her status 

and that, not needing the additional income, she would not have con1The Service has not attempted to controvert the respondent's assertion as to the 

number of horns which she devoted to her sales work. If, at the meetings which she 

attended, she Ai as in fact able to persuade substantial numbers of people to purchase the 

burial plots, then her testimony regarding her hours of work is believable. 

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Interim Decision #2313 

ducted herself as she did if she had been informed of the possible 

consequences. 

Section 101(a)(15)(E) is the provision of the Act governing the 

respondent's treaty investor status. That section describes a treaty 

investor as an alien who is in the United States "solely to 'develop and 

direct the operations of an enterprise in which he has invested, or of an 

enterprise in which he is actively in the process of investing, a substantial amount of capital." In Matter of Udagawa, 14 I. & N. Dec. 578 

(BIA 1974), we were required to interpret this language of section 

101(a)(15)(E)(ii). In so doing we determined that the section must be 

construed within the framework of the entire Act, and we placed considerable importance on the congressional policy, expressed in the Act, 

of protecting American labor from competition of an undesirable nature. 

Accordingly, we held that the alien in Udagawa could not qualify as a 

treaty investor, in part because his prospective job entailed some duties 

characteristic of positions occupied by skilled laborers. It is therefore 

clear that a treaty investor is statutorily limited in the type of economic 

activities in which he may engage. 

The employment of nonimmigrants, including treaty investors, is also 

governed by regulations. The pertinent portion of 8 CFR 214.1(c) 

states: 

A nonimmigrant who is permitted to engage in employment may engage only in such 

employment as has been authorized. Any unauthorized employment by a nonimmigrant 

constitutes a failure to maintain status within the meaning of section 241(a)(9) of the 

Act'. 

The regulation which is specifically applicable to treaty investors, 8 

CFR 214.2(e), also addresses the question of employment. It reads, in 

part: 

A trader or investor may change from one employer to another only if his request for 

permission to do so has first been approved by the district director having jurisdiction 

over his residence. The request shall be supported by evidence that the requester would 

still be classifiable as a trader or investor in the new employment. . . . Any unauthorized change to a new employer shall constitute a failure to maintain status within 

the meaning of section 241(a)(9) of the Act. 

This portion of 8 CFR 214.2(e) was not effective until several months 

after the respondent began her sales work. 3However, it was in effect 

during the majority of the months in which she earned commissions, and 

it was operative in February of 1973 when the respondent recommenced 

her sales activities. 

These regulations make it plain that a treaty investor may not engage 

2 The quoted portion of 8 CFR 214.1(c) was in effect prior to the respondent's commencement of her sales work on June 16, 1971. See 36 Fit 8048 (April 29, 1971). 

*See 36 FR 23865 (December 16, 1971). 

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Interim Decision #2313 

in unauthorized employment. Moreover, we have consistently viewed 

unauthorized employment as a failure to comply with the conditions of 

an alien's status with respect to other nonimmigrant classifications, and 

this view has been endorsed by the courts. See Mastorakis v. INS, 460 

F.2d 1283 (C.A. 9, 1972); Gill v. District Director, 426 F.2d 762 (C.A. 9, 

1970); Matter of Martinez and Londono, 13 I. & N. Dee. 483 (BIA 1970), 

affirmed, London v. INS, 433 F.2d 635 (C.A. 2, 1970); Matter of 

Boroumand, 13 I. & N. Dec. 306 (BIA 1969); Matter of Wong, 11 I. & N. 

Dec. 704 (BIA 1966); Matter of Vilanova-Gonzalez, 11 I. & N. Dec. 610 

(BIA 1966); Matter of Garvey, 10 I. & N. Dec. 519 (BIA 1964); Matter of 

S—, 8 I. & N. Dec. 574 (BIA 1960); Matter of B—, 6 I. & N. Dec. 234 

(BIA 1954). The respondent was authorized to conduct affairs relating 

to her investment; she was not permitted to accept work as a cemetery 

plot salesperson. 

The only remaining question is whether the respondent's conduct can 

be deemed employment for the purpose of this proceeding. In an unreported decision, Matter of Ng Kow Wah, Alt 031 419 (BIA November 

30, 1960), concerning the effect of employment on an alien in another 

nonimmigrant status, we stated that "[i]f the alien agreed to engage in 

gainful employment for pay, regardless of the number of days he 

worked, he has violated the terms of the nonimmigrant status under 

which he was admitted. . . ." 

The work which the respondent performed was not of a casual nature. 

While she may not have known that her employment was in violation of 

her status, such lack of knowledge, without more, does not preclude a 

finding of daportability under section 241(a)(9). See Gill v. District 

Director, su;ora. .Even if the respondent did not initially intend to be 

employed, the lengthy period of her involvement in this sales work 

coupled with the receipt of substantial commis' sions demonstrate the 

existence of an unauthorized employinent relationship. A reasonable 

person wou:d certainly have , recognized that this was more than a 

simple civic project . 

We find that the respondent engaged in unauthorized employment. 

She therefore failed to comply with the conditions of her treaty investor 

status. Deportability has been established by clear, convincing and 

unequivocal evidence. 

While the:re appears to be some merit in counsel's contention that the 

immediate departure of the respondent from the United States would 

be undesirable for the Filipino community in San Francisco, this consideration is not germane to our adjudicatory functions. See Matter of 

Geronimo, 13 I. & N. Dec. 680 (BIA 1971). 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily 

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Interim Decision #2313 

within 88 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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