Interim Decision #1724 

3/TATTER Or TALAW0A 

In Deportation Proceedings 

A-13550300 

Decided by Board April 17, 1967 

Whore roapondont'e business failure was reasonebly contemporaneous (within 

a period of less than 90 days) with the hearing in which he had the burden 

of establishing he was entitled to an exemption from the labor certification 

requirements of section 212(a).(14) of the Immigration and Nationality Act. 

no amended, motion to reopen proceedings is granted for the introduction of 

evidence material to the issue of whether respondent, in conjunction with his 

application for adjustment of status under section 245 of the Act, qualifies 

pursuant to 8 OPR 212.8(b) (4) for an exemption from obtaining a labor 

certification as one engaged in a commercial or agricultural enterprise. 

CHARGE: 

Order: Act of 1952—Section 241(a) (9) [8 U.S.O. 1251(a) (9)j—Nonimmigrant—Failed to comply with conditions of nonimmigrant status. 

ON BEHAIS or RESPONDENT : Donald L. 'Ungar, Esquire 

220 Bush Street 

San Francisco, California 94104 

An order entered by the Board of Immigration Appeals on February 10, 1967 dismissed an appeal by the trial attorney at San Francisco from a decision of the special inquiry officer adjusting the 

respondent's status to that of a permanent resident alien pursuant 

to the provisions of section 245 of the Immigration and Nationality 

Act. The order entered by the special inquiry officer terminated the 

proceeding. The case is again before us on a motion filed by the Immigration and Naturalization Service on March 13, 1967 requesting 

a reopening of the proceeding for the introduction of evidence alleged 

to be material to the issue of whether the respondent qualifies for an 

exemption from obtaining a certification from the Secretary of Labor 

pursuant to the provisions of 8 CFR 212.8(b) (4). Counsel for the 

respondent has submitted a brief in opposition to the motion. 

The respondent, a native and citizen of Tonga, has been found 

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deportable under the provisions of section 241(a) (9) in that he is a 

nonimmigrant who failed to comply with the conditions of his nonimmigrant status. The respondent is a married male alien, 40 years of 

:age. He was admitted to the United States at the port of Honolulu, 

Hawaii on January 15, 1968 as a student. Thereafter, his status was 

changed to an industrial trainee and he was authorized to remain in 

that status until March 6, 1964. The special inquiry officer in a decision 

.dated September 21, 1966 concluded that the respondent was not required to have a certification from the Secretary of Labor as a prerequisite for the issue of an immigration visa inasmuch as he was 

:exempted by the provisions of 8 CPR 212.8(b) (4). We affirmed the 

:conclusion reached by the special inquiry officer in our decision of 

February 10, 1967. 

Supporting the Service motion is an affidavit executed by the Chief, 

General Investigations Section of the Immigration and Naturalization Service on March 6, 1967. It states in substance that the respondent no longer operates a mobile nursery and gardening service and 

since December 12, 1966 has been employed by Pan American Airways 

as a "fleet serviceman" working a 5-day, 40-hour-week schedule. The 

Service maintains that since the respondent ceased to be an independent contractor prior to the Board's decision of February 10, 1967 this 

factor "casts serious doubt on the finding that the business in which he 

i( respondent) was engaged ... was a 'commercial or agricultural enterprise' of a substantial nature within the meaning of 8 CFR 212.8 

-( 3) (4)." 

Counsel in his reply to the Service motion concedes that the respondent's commercial venture was not successful. He opposes a reopening 

of the proceeding on the ground that "no ironclad guarantee of business success can be demanded of an alien who seeks the labor certification exemption." Counsel relies on a statement by the Board in its 

opinion of February 10, 1967, to wit, "The test of an alien's ability and 

resources to carry on the contemplated enterprise cannot be measured 

by hard and fast rules or by the amount of capital he invests in the 

undertaking. It will vary with the nature of the enterprise. Whether 

:the contemplated enterprise will be one that has a reasonable chance 

of success cannot be tested in every case by the alien's ability or resources. There are certain risk facts associated with the establishing of 

any commercial or agricultural enterprise." 

Counsel maintains that the respondent has met the burden imposed 

:by the statute on one occasion and that subsequent events have no bearing on the issue because "all that is required is a showing of the alien's 

good faith intention of carrying on the contemplated enterprise and a 

•reasonable chance of success, based upon his abilities and resources." 

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We said in our opinion of February 10, 1967 that an alien "who seeks 

an exemption from the labor certification requirement of section 212 

(a) (14) has the burden of establishing his good faith intention of 

engaging in a stated enterprise and his ability and resources to carry 

on the stated enterprise." The hearing in the instant case was concluded 

on September 21, 1966. Within a period of less than 90 days the respondent found it impossible to continue with the commercial venture 

which he had established. The respondent, on the very day that his 

counsel argued his case before this Board, accepted employment with 

Pan American Airways as a "fleet serviceman." The affidavit supporting the motion states that the respondent's telephone at his place of 

business (1528 Noe Avenue) was discontinued in November of 1966. 

Since the failure of the respondent's business venture was reasonably 

contemporaneous with the 'hearing in which he had the burden of 

establishing that he was entitled to the exemption provided by 8 CFR 

212.8(b) (4), we conclude that there is a sound basis for the Service 

request for a reconsideration of the respondent's eligibility for adjustment of status under section 245 (supra). This rule should apply to 

any case in which the adjustment of status has not been granted. 

Counsel during oral argument before this Board on December 12, 

1966 raised the issue of whether Public Law 89-781, 1enacted subsequent to the special inquiry officer's opinion of September 21, 1966, 

exempted the respondent from the labor certification requirement. 

Counsel also urged the Board to rule that the Service should be estopped from invoking the provisions of section 212(a) (14) because 

respondent's application for relief under section 245 was ready for 

adjudication in May of 1965 before the present statute became effective. 

This issue was raised by counsel in Matter of Hoeft, A-14127754, 

Int. Dec. No. 1723, BIA, April 14, 1967. -We found that Congress 

intended the amendment to section 245(c) enacted on November 2, 

1966 (P.L. 89-732, 80 Stat. 1161) to benefit only persons whose applications were on file before December 1, 1965 and could not be previously considered because of the provisions of section 245(c). We 

concluded that the amendment of section 245(e) created an exception only for those mentioned in the section, i.e.

, 

natives of the Western Hemisphere and adjacent islands, who had filed applications for 

adjustment of status before December 1, 19a. The respondent herein 

filed his application for adjustment of status in February of 1964 

but he is not a native of the Western Hemisphere or adjacent islands. 

'Public Law 89-782 provides, inter olio, that Western Hemisphere natives may 

adjust their immigration status under section 245 provided they had tiled their 

applications prior to December 1, 1965. It also exempts such applicants from 

the labor certification provided of section 212(a) (14). 

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Interim Decision #1724 

Accordingly, no benefit accrues to the respondent by reason of the 

amendment to section 245 of the Act of November 11, 1966 (supra). An 

appropriate order will be entered. 

ORDER: It is directed that the case be remanded to the special 

inquiry officer for the introduction of evidence material to the issue 

of the respondent's eligibility for relief under section 245 of the Immigration and Nationality Act and to permit the respondent an opportunity to testify and slibmit evidence in his own behalf on this 

issue. 

It is further ordered that the Board's order of February 10, 196T 

be and the same is hereby withdrawn. 

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