Interim Decision #2658 

MATTER OF KONISHI 

In Deportation Proceedings 

A-19807195 

Decided by Board July 5, 1978 

Self-employed professional artist does not qualify for exemption from the labor certification requirements of section 212(a)(14) as an investor where Investment" consists 

solely of an inventory of his own paintings along with the furnishings for a one-man 

gallery because the gallery is the mere conduit for the sale of the products of the alien's 

own labor and no showing is made that the "business" would expand job opportunities so 

as to offset any adverse impact of his employment. 

CHARGE: 

Order: Act of 1952--Section 241(a)(8) U.S.C. 1251(n)(2)}—Nonimmigrant visitor— 

remained longer 

013 BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Jack Wasserman. Esquire Sabri 1Candah, Acting 

1'107 H Street, N. W. Appellate Trial Attorney 

Washington, D.C. 20006 

William J. Lawler, Esquire Philip P. Leadbetter 

615 Montgomery Street Trial Attorney 

Suite 320 

San Francisco, California 94111 

BY: Maniatis, Acting Chainnam Appleman, Maguire, and Farb, Board Members 

The respondent appeals from the decision of an immigration judge, 

dated March 18, 1977, in which he found the respondent deportable as 

charged, denied his application for adjustment of status, and granted 

him the privilege of voluntary departure. The appeal will be dismissed. 

The respondent is a 29-year-old native and citizen of Japan who 

entered the United States on February 19, 1973, as a nonimmigrant 

visitor for pleasure. His status was adjusted to that of a student and he 

was authorized to remain until June 29, 1975. On July 14, 1976, the 

District Director denied the respondent's application for adjustment of 

status and granted him voluntary departure until August 14, 1976. At 

his deportation hearing before the immigration judge, the respondent 

admitted the allegations of fact contained in the Order to Show Cause 

and conceded deportability. The only issues on appeal concern his appli549 
0.4, ✓ 7r LiVtAl 

cation for adjustment of status, pursuant to section 245 of the Immigration and Nationality Act, 8 U.S. C. 1255. 

The respondent seeks adjustment of status as a nonpreference immigrant. He intends to work in the United States and the provisions of 

section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), therefore, apply to 

him. The respondent, however, maintains that he is exempt from the 

labor certification requirement of section 212(a)(14) as an "investor" 

within the contemplation of 8 C.F. R. 212.2(b)(4). 

The burden of proof to establish a claim of "investor" rests upon the 

alien. The evidence must be unambiguous and any doubts will be resolved against the "investor" claimant. Matter of Khan, Interim Decision 2565 (BIA 197'7); Matter of Shaw, Interim Decision 2525 (BIA 

1976); Matter of Ahmad, Interim Decision 2316 (ETA 1974). 

The immigration judge denied the respondent's application for adjustment on the ground that he has not submitted satisfactory evidence 

of the claimed investment and also as a matter of discretion. Upon our 

review of the record, we are convinced that the immigration judge's 

decision was correct. 

The respondent alleges an investment of over $10,000 in his occupation as an artist. He has submitted a list of expenditures in connection 

with the opening of a showroom for his paintings totaling $9,674.06. He 

also alleges a current inventory of $30,865 in finished paintings that are 

up for sale. Of this figure, $2,780 is claimed to be an expenditure for the 

materials used in creating the paintings. We need not, however, decide 

whether these figures are to be computed into the total investment. 

The respondent has admitted that he has no employees. Although he 

claims that he is not in competition with the American labor market, we 

are not convinced that his investment expands job opportunities as 

contemplated by Congress. See Matter of Ruangswang, Interim Decision 2546 (BIA 1976); Matter of Heitland, 14 I. & N. Dec_ 563 (MA 

1974). 

In Heitland, supra, we developed a "test concerning substantial investment": 

The investment either must tend to expand job opportunities and thus offset any 

adverse impact which the alien's employment may have on the market for jobs, or must 

be of any amount adequate to insure, with sufficient certainty, that the alien's primary 

function with respect to the investment and with respect to the economy will not be as a 

skilled or unskilled laborer. 

This "test" was repeated in slightly different language in 

R-uangswang, supra: 

8 C.F.R. 212.2(b)(4) was amended, effective October 7, 1976, to require an investment 

of *40,000. The amendment has prospective effect only and, therefore, the present case is 

considered under the regulation in effect at the time the application was made. 

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Interim Decision #2658 

To qualify for investor status, the nature of the investment must be such that the 

investor is spending his energies in the management of the investment, rather than in 

performing labor which can be performed by a worker already in the United States, 

unless the business expands job opportunities thereby offsetting any adverse impact on 

the alien's own employment. 

The fact that the respondent is a self-employed professional does not 

remove him from competition with American artists. His full-time work, 

either creating or selling his own paintings, is not merely incidental to 

any business or investment, but is his primary function. This is not 

within the concept of an investor as contemplated by Congress. The 

respondent's investment in the furnishings of his one-artist "gallery" is a 

mere conduit for the sale of the products of his own labor. His primary 

activity is the creative one, not the management of a one-artist gallery. 

Thus, we refuse to hold that the respondent, as a professional artist, is 

outside the requirement of a labor certification intended by Congress to 

protect the American labor force. The painting and selling of one's own 

works of art is a form of labor and, therefore, section 212(a)(14) of the 

Act is applicable. Inasmuch as the respondent has failedto show that his 

investment expands job opportunities, so as to offset the adverse impact 

of the respondent's own employment, we agree with the immigration 

judge that he has not met his burden of proof with respect to his 

"investor" claim. 2Accordingly, the appeal will be dismissed. 

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 

within 30 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. 

2 The respondent alleges that his business is still young and as soon as it grows to be 

large enough to need extra labor he will hire other people. However, the future prospect 

of expanding job opportunities is insufficient to support a current claim that his investment should exempt him from the labor certification requirement of seetinn 212(a)(14) of 

the Act. Cf. Matter of Khan, Interim Decision 2565 (BIA 1977). 

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