Interim Decision #2262 

MATTER OF UDAGAWA 

In Exclusion Proceedings 

A-20300772 

Decided by Board February 13, 1974 

Applicant, who will supervise and train American workers as tempura cooks at a 

Japanese restaurant and will assist in the preparation of meals during the 

training period, is inadmissible as an employee of a treaty investor under 

section 101(aX15XEXii) of the Immigration and Nationality Act, since he will 

not be employed in a "responsible capacity" within the meaning of 22 CFR 

41.41. [Matter of Tamura, 10 I. & N. Dec. 717 (Reg. Corn. 1964), overruled] 

ON BEHALF OF APPLICANT: William J. Lawler, Esquire 

615 Montgomery Street 

San Francisco, California 94111 

EXCLUDABLE: Act of 1952—Section 212(a)(20) 1182(a)(20)]—Immigrant 

not in possession of immigrant visa. 

The alien applicant is a native and citizen of Japan who arrived 

at San Francisco, California on April 17,'1973, and sought admission as a nonimmigrant treaty investor. He was denied admission 

and an exclusion hearing was held on April 20, 1973, at which time 

the immigration judge found the applicant excludable under section 212(a)(20) of the Immigration and Nationality Act. The applicant has appealed that decision. The appeal will be dismissed. 

Upon his arrival in the United States the applicant was in 

possession of a Japanese passport and a nonimmigrant treaty 

investor visa apparently issued by a United States consular official in Japan. At his hearing it was established that the applicant 

is a cook or chef specializing in the preparation of Japanese tempura meals. He is in the employ of a Japanese corporation which, 

through various corporate holdings, is the sole owner of a 

Japanese restaurant in San Francisco where the applicant had 

expected to work. 

The applicant appears to have had at least one full year of 

schooling and two years' practical experience as a cook. During 

the last six months of his work experience in Japan he had 

specialized as a tempura chef and had supervised the activities of 

several other cooks. The applicant had been expected to remain in 

the United States for as long as two years, during which time he 

578 
interim Decision gEzzoz 

was to supervise and train American workers as tempura cooks 

and was to assist in the preparation of meals at the restaurant. He 

was due to replace another tempura chef at the San Francisco 

restaurant, who evidently had had a similar assignment. An executive with the applicant's employer maintains that the 

applicant's presence here is necessary to insure the quality of the 

Japanese meals which are served at the restaurant until competent American help can be trained. This also appears to have been 

the function of the applicant's predecessor at the restaurant. The 

corporation's failure in its attempt to acquire adequate American 

help appears to have stemmed from an unwillingness on the part 

of successful trainees to remain at the job. Tempura cooking, it 

appears, requires greater effort than other cooking jobs with comparable pay. 

The applicant seeks admission as a nonimmigrant treaty investor. Section 101(a)(15)(EXii) of the Act defines a treaty investor as: 

an alien entitled to enter the United States under and in pursuance of the 

provisions of a treaty of commerce and navigation between the United States 

and the foreign state of which he is a national, and the spouse and children of 

any such alien if accompanying or following to join him: 

(ii) 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.... 

The applicant has indicated that he has no funds or other 

property invested in any of the interrelated corporations involved 

in this matter. The corporation which employs him is the investor 

in this case, and for section 101(aX15)(E)(ii) to have any real 

meaning in a world dominated by corporate entities, it must be 

construed in a manner which would permit appropriate agents of 

a corporation to obtain this nonimmigrant status. Consequently, it 

would be appropriate to admit this applicant as a nonimmigrant 

treaty investor, if he qualifies as an individual who intends "solely 

to develop and direct" the operations of the enterprise. 

At present the regulations of the Immigration and Naturalization Service do not confront the question of who may qualify for 

treaty investor status. It appears, however, that a reasonable 

construction of section 101(aX15)(EXii) is contained in 22 CFR 

41.41. The relevant portion of this Department of State regulation 

states: 

(a) An alien shall be classifiable as a nonimmigrant treaty investor if he 

establishes to the satisfaction of the consular officer that he qualifies under 

the provisions of section 101(a)(15XE)(ii) of the Act and that: (1) He intends to 

depart from the United States upon the termination of his status; and (2) he 

is an alien who has invested or is investing capital in a bona fide enterprise 

579 
Interim Decision #2262 

and is not seeking to proceed to the United States in connection with the 

investment of a small amount of capital in a marginal enterprise solely for 

the purpose of earning a living; or that (3) he is employed by a treaty investor 

in a responsible capacity and the employer is a foreign person or organization 

of the same nationality as the applicant. 

While this regulation could be subject to varying interpretations, 

we construe it to mean that an alien such as the applicant will 

qualify as a "treaty investor" if he has the necessary intent to 

depart and if he meets the conditions imposed by subdivision (3) of 

the quoted portion of the regulation. Since the evidence adduced 

at the hearing indicates that the applicant possesses the requisite 

intent to return to Japan, the remaining issue in this case is 

whether he can be considered to be "employed . in a responsible 

capacity. ..." 

The notes to 22 CFR 41.41, contained in the Department of State 

Foreign Affairs Manual, elaborate upon the regulation. The note 

which evidently relates to employment in a responsible capacity 

reads: 

Highly trained technical and managerial personnel employed by firms having 

the nationality of a country which has entered into a treaty with the United 

States providing for the investor classification are entitled to treaty investor 

status if: 

(a) they are employed in a managerial capacity, or 

(b) they are highly trained and specially qualified technical personnel 

required in the United States for one of the following purposes: 

(1) establishment of the enterprise, 

(2) training or supervision of technicians employed in manufacturing, 

maintenance and repair functions, or 

(3) the continuous development of product improvement and quality controL 

Section 101(aX15XEXii) of the Immigration and Nationality Act, 

the State Department regulation (22 CFR 41.41), and the accompanying notes must all be construed within the framework, and in 

keeping with the concepts, of the Act. 

In section 212(a)(14) of the Act Congress has evinced a desire to 

protect American labor from excessive job competition which 

might be generated by the presence in the United States of 

numerous skilled and unskilled alien laborers. Nevertheless, aliens 

who do not desire immigrant status, and who may be needed to 

580 
Interim Decision #2262 

perform temporary services or labor in the United States, are 

potentially eligible for admission as nonimmigrants under section 

101(aX15XH).1 Similarly, section 101(a)(15)(L) provides a basis for 

the admission, as nonimmigrants, of intracompany transferees 

who are to render services involving specialized knowledge? 

Whether the applicant could qualify as a nonimmigrant under 

either of these provisions is not before us; however, the existence 

of this statutory scheme convinces us that Congress did not intend 

that skilled alien laborers or aliens occupying minor managerial 

posts should be eligible for treaty investor status. These job 

positions can be readily held by American workers without placing 

in jeopardy a United States investment made by a foreign firm. 

Although it would seem appropriate under certain circumstances 

for a foreign corporation temporarily to utilize the services of 

skilled alien workers, the jobs in which they would ordinarily be 

employed are not of such significance to the actual investor that 

treaty investor status should be accorded to these individuals. 

Skilled alien employees should be required to enter in a nonimmigrant status that will afford some measure of protection to 

American labor.3 

The applicant is concededly an individual with a fair degree of 

specialized training who would be expected to function in a modest 

supervisory role. However, his proposed position at the restaurant 

also entails duties characteristic of skilled laborers, and the job is 

The regulation governing section 101(a)(15)(H) nominmigrants is 8 CFR 

214.2(h). Pursuant to section 214(c) the regulation requires the approval of a visa 

petition for all aliens in this category. For an alien destined to perform 

temporary services or labor, it also requires labor certification or other evidence 

tending to insure that American workers would not be adversely affected by the 

alien's admission. The petitioner need not be a resident of the United States. 

2 The regulation applicable to section 101(a)(15)(L) also requires the alien 

applicant to be the beneficiary of an approved visa petition and permits the 

petitioner to be a nonresident. There is no labor certification requirement for 

this nonimmigrant category. However, the petitioner is required to submit a 

statement detailing the beneficiary's proposed function in the United States. 8 

CFR 214.2(1). 

3 There is an additional factor to consider. Section 101(a)(15)(E) does not limit a 

treaty investor to a temporary stay, whereas, both section 101(aX15)(H) and 

section 101(aX15)(L) do contemplate only a temporary visit for a nonimmigrant 

in either category. The Immigration and Naturalization Service regulations 

governing these three nonimmigrant classifications speak in terms of a temporary admission. 8 CFR 214.2(e); 8 CFR 214.2(h)(7), (9) and (11); 8 CFR 214.2(1)(3). 

Nevertheless, the statute may be designed to allow a treaty investor an 

indefinite stay. Compare S. Rep. No. 1515, 81st Cong., 2d Sess. 563 (1950), with 

1952 U.S. Code Cong. & Ad. News 1697. We have serious doubts concerning the 

admission of this applicant in a status which potentially could result in a 

limitless visit to the United States. 

581 
Interim Decision #2262 

admittedly one which is ultimately expected to be held by an 

American worker. The position is not of such a substantial nature 

that it warrants the indefinite utilization of foreign labor. 

The employment of aliens in this type of position cannot be 

characterized as designed solely for the development and direction 

of the investment. Rather, the continued use of foreign workers 

may function as a means of securing adequate help at less than 

the prevailing United States wage standards for jobs of comparable complexity. There is substantial evidence in the record to 

indicate that the applicant's employment in the United States was 

not required because of a shortage of qualified United State chefs, 

but because of the restaurant corporation's unwillingness adequately to compensate those available American workers. 

Although it has not been clearly established that the applicant's 

employer desires to continue importing foreign labor, we are 

unable to hold that the applicant will be employed in a responsible 

capacity within the meaning of 22 CFR 41.41, or that he qualifies 

within the purview of the notes of the Foreign Affairs Manual. His 

abilities more resemble those of a skilled laborer than those of one 

who will develop and direct an enterprise. If he is to be admitted it 

must be via a category which would not utterly circumvent the 

congressional policy of protecting American labor from undesirable job competition. 

In exclusion proceedings the applicant has the burden of proof 

to establish that he qualifies for admission under the claimed 

status. Section 291, Iinmigration and Nationality Act. We find that 

the applicant has not shown that he is employed in a responsible 

capacity, and therefore that he has not demonstrated his entitlement to admission as a nonimmigrant treaty investor. Since the 

applicant has failed to establish that he is entitled to nonimmigrant status, he is presumed, under section 214(b) of the Act, to be 

an immigrant. He is thus excludable under section 212(aX20) as an 

immigrant not in possession of an immigrant visa or other appropriate documentation. 

Finally, the approach we have adopted in this case is consistent 

with the result in Matter of Kobayashi and Doi, 10 L & N. Dec. 425 

(Deputy Assoc. Commr. 1963). We recognize that our decision is in 

apparent conflict with Matter of Tamura, 10 L & N. Dec. 717 (Reg. 

Com. 1964); however, we are not bound by Regional Commissioners' 

rulings. 

ORDER: The appeal is dismissed. 

582