Interim Decision #2565 

MATTER OP I-CRAW 

In Deportation Proceedings 

A-21186003 

Decided by Board March 15, 1977 

(1) Respondent moved to reopen deportation proceedings to apply for adjustment of status 

under section 245 of the Immigration and Nationality Act as a nonpreference immigrant 

who is exempt from the labor certification requirement of section 212(0(14) of the Act as 

an investor as provided in 8 C.F.R. 212.8(b)(4). The motion was denied and respondent 

appealed. 

(2) From the record, it was not possible to determine the total investment made by the 

respondent, but it did appear that the investment was no more than the amount of cash 

contributed to the business by respondent which amounted to no more than 58.600—less 

than the $10,000 required by the regulation. However, respondent argued that he was 

"actively in the process of investing" and should be given a reasonable time to complete 

the investment. 

(2) In this ease, respondent had at best a sulhjertive -Intention to inveat in the future. 

Although he may have invested funds in the past, that does not establish that he will 

invest funds in the future. More is required for such a showing. For example, copies of 

contracts showing a legal commitment to make certain future expenditures or documents of that nature could be submitted. Since respondent submitted nothing of this 

nature he failed to show that he was "actively in the process of investing" as required 

under 8 C.F. R. 212.8(bX4), and the appeal will be dismissed. 

CHARGE: 

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(0(9)}—Nonimmigrant student—failed 

to comply with conditions of admission 

ON BEHALF OF RESPONDENT: Ben H. Kim, Esquire 

120 South LaSalle Street 

Chicago, Illinois 60503 

BY: Milhollan, Chairman; Wilson, Maniatis, and Apple man, Board Members 

This is an appeal from a decision of an immigration judge, dated 

October 21, 1975, denying the respondent's motion to reopen his deportation proceedings. The respondent seeks reopening to apply for adj ustment of status pursuant to section 245 of the Immigration and 

Nationality Act. The appeal will be dismissed. 

The respondent is a native and citizen of Pakistan. On July 29, 1075, 

he was found deportable under section 241(a)(9) of the Act as a nonim138 
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migrant alien who had failed to maintain his status. The respondent 

conceded deportability and that is not an issue in this appeal. 

The respondent seeks adjustment of status as a nonpreference immigrant. He claims to be exempt from the labor certification requirements of section 212(a)(14) of the Act as an "investor." See 8 C.F.R. 

212.8(3)(4). Under this regulation, an alien who possesses the requisite 

experience or training, and who establishes that he has invested or is 

actively in the process of investing at least $10,000 in a commercial or 

agricultural enterprise is not considered to be within the purview of 

section 212(a)(14) of the Act.' 

The burden of proof to establish this claim rests upon the alien. The 

evidence must be unambiguous and any doubts will be resolved against 

the "investor" claimant. Matter of Shaw, Interim Decision 2525 (BIA 

July 2, 1976); Matter of Ahmad, Interim Decision 2316 (BIA 1974). 

The respondent has invested in a tire, battery, and accessory enterprise. He appears to be the sole proprietor and does business as Irving 

Park Tire Center. The respondent has not submitted an accountant's 

statement, nor, in fact, any statement, to establish the amount and 

nature of his investment. He has submitted numerous invoices, a copy of 

a lease, a copy of his business checking account statement and several 

canceled checks. The respondent contends that his investment in 

equipment and inventory and the anrunint of cash available to and being 

used by the business, equals at least $10,000. 

In computing the amount of the investment, the value of equipment 

purchased and inventory on hand at a given time is included. Matter of 

Ahmad, supra. The amount of the invoices for equipment purchased, 

including a station wagon which is claimed to be used in the respondent's 

business, totals $2,400. As of the time of the hearing on the motion to 

reopen, investment in inventory, as evidenced by invoices and delivery 

orders, totaled $2,328.44. The earliest of these particular purchases of, 

or orders for, inventory appears to have been made on August 14, 1975, 

and the latest on September 29, 1975. 

A reasonable amount of cash in a business bank account or similar 

fund which is used for the routine operations of the business may be 

included as part of the investment. Cf. Matter of Heitland, 14 I. & N. 

Dec. 563 (BIA 1974), affirmed Civ. No. 76-4141 Cir. January 27, 

1977). On July 3, 1975, the respondent transferred funds from his 

personal savings account, and other money, to a business checking 

account. The account for Irving Park Tire Center shows an opening 

balance of $7,500. As of August 1, 1975, this had been increased to 

$8,585.80. However, as of August 30, 1975, the balance stood at 

' 8 C.F.R. 212.8(b)(4) was amended, effective October 7, 1976, to require an investment 

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

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

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$3,688.88. The amounts drawn on this account in that period, as evidenced by copies of the canceled checks, sliow that the money was used 

for payment of two months rent, salary for an employee, and payments 

to suppliers. However, it is not clear for what items these payments 

were made. One cheek in the amount of $1,725 was made payable to a 

person who apparently sold the respondent $1,175 worth of equipment, 

as evidenced by an invoice. The difference is not explained. 

On appeal, counsel for the respondent has submitted canceled checks 

representing payment for most of the invoices previously included in 

computing the amount of inventory. None of these cheeks had been 

shown on the checking account statement. Counsel's contention that 

these canceled checks represent an increase in the investment is erroneous and somewhat misleading. Presumably, the canceled checks represent a further reduction in the checking account. There is no evidence 

that funds sufficient to offset the checks were deposited in the account. 

The respondent has also submitted additional invoices and delivery 

orders. The respondent contends that these represent an additional 

investment of $693.15. However, one of these invoices representing 

inventory valued at $365.64 had previously been submitted and was 

included in the amount of the investment- In attempting to establish 

that the $10,000 minimum investment has been reached, care should be 

taken to avoid counting the same items twice. 

On the basis of this record, it is not passible to ascertain the total 

investment made by the respondent. It appears, however, that the 

investment has not exceeded more than the cash contribution to the 

business which the respondent has made. This amounts to no more than 

$8,600. 

The respondent also argues that, notwithstanding that he has not yet 

invested $10,000 in the business, he is "acti-vely in the process of investing' and should be given a reasonable period of time in which to complete that investment. It appears from the record that the respondent 

has made a considerable investment in his business. He apparently has 

been making continuous purchases of inventory items. However, this by 

itself, does not show that he is "actively in the process of investing" 

$10,000. 

We have not, nor do we attempt here, to set forth a complete definition of the phrase "actively in the process of investing." However, an 

intention to commit funds, which is contingent upon approval of an 

application for adjustment of status, does not come within that phrase. 

Matter of Lui, Interim Decision 2354 (MA 1975). Even where such an 

iaitention is evidenced by a note which in turn is contingent upon the 

granting of adjustment of status, the regulation will not be satisfied. 

clatter of Lee, Interim Decision 2415 (BIA 1975). 

Here, the respondent has at best a subjective intention to invest in 

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the future. Although he may have invested funds in his business in the 

past, that does not establish that he will continue to do so in the future. 

Something further must be shown. For example, evidence establishing 

that an investor claimant is "actively in the process of investing," could 

consist of copies of contracts showing that he is legally committed to 

making certain expenditures, or similar items. The respondent has 

submitted nothing of this nature. Accordingly, we hold that he has not 

established that he is "actively in the process of investing" $10,000 in his 

business. 

The decision of the immigration judge was correct. The appeal will 

therefore be dismissed. 

ORDER: The appeal is dismissed. 

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