Matter of Takayanagi (Board decision, February 12, 1976)

Plain-English summary

A Japanese national who had overstayed and worked as a hairdresser sought adjustment of status through an investor exemption. He claimed to have invested $10,000 in stock of the salon where he worked after attempts to obtain labor certification failed. The Board found little evidence of an actual investment, and the shares had to be returned when his employment ended. It concluded that the stock arrangement was tied to his job and could not substitute for labor certification for an ordinary employee. The Board dismissed his appeal from the adjustment denial and allowed 30 days for voluntary departure.

Decision snapshot

• Cited authorities: 8 C.F.R. § 212.8(b)(4); 8 U.S.C. § 1251(a)(2)
• Outcome: Adjustment denial affirmed; appeal dismissed, with 30 days for voluntary departure.
• Key point: Stock tied to a worker's employment did not establish an investor exemption from labor certification.

Full text (BIA official public release)

Interim Decision #2472

MATTER OF TAKAYANAGI

In Deportation Proceedings
A-19854263
Decided by Board February 12, 1976
Denial of respondent's adjustment of status based on a claim to investor exemption under 8 CFR 212.8(b)(4) is affirmed on appeal in deportation proceedings since respondent's claimed investment of $10,000 is considered an attempt to circumvent the normal labor certification procedure where the investment is in shares of stock of a corporation which operates a beauty salon in which respondent had been illegally working as a hairdresser, for months, prior thereto; the investment followed unsuccessful attempts to obtain a labor certification as a hairdresser; the record shows that the investment is, at best, an adjunct to respondent's employment; that the stock shares are to be returned to the corporation upon termination of respondent's employment; that respondent has no control over his “investment”; and that he is, in fact, an ordinary employee competing with United States workers for an available position. CHARGE: Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Remained longer, nonimmigrant visitor.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Elmer E. Poston, Esquire
George Indelicato
770 Kapiolani Boulevard #514
Appellate Trial Attorney
Honolulu, Hawaii 96813
Jack Wasserman, Esquire
1707 “H” Street, N.W.
Washington, D. C. 20006

On March 11, 1975, an immigration judge found the respondent de- portable as charged, granted him the privilege of voluntary departure, and entered an alternate deportation order, but denied the respondent's application for adjustment of status. The respondent has appealed from the denial of adjustment of status. His appeal will be dismissed. The record relates to a single male alien, 34 years of age, a native and citizen of Japan, who entered the United States at Honolulu, Hawaii on April 15, 1971. He was classified as a nonimmigrant student and was eventually authorized to remain in the United States until December 31, 1973. He has failed to depart. The respondent's deportability has been established by clear, convinc- 585
Interim Decision #2472

ing and unequivocal evidence. Through counsel he has also conceded his deportability. Since December 31, 1973, the respondent has remained in this coun- try illegally. Since that time he has also steadily worked in this country as a hairdresser, again illegally. He has never had a labor certification. Attempts to procure a labor certification for him failed. The respondent now seeks adjustment of status as an investor claim- ing eligibility under the provisions of 8 CFR 212.8(b)(4). He claims to have invested $10,000 in shares of stock of Honey of Hawaii, Ltd., a corporation which operates a beauty salon in which he had been work- ing, for months, prior to the claimed investment. Except for a letter signed by the chairman of the board of that corporation, there is no evidence that the amount of $10,000 was actually invested. The chair- man of the board, who lives in Japan (Tr. p. 4), stated in that letter that the respondent was going to be issued a stock certificate under the express condition “that upon termination of his employment by the corporation for any reason whatsoever, the said shares shall be returned to the corporation and cancelled and that he shall receive the book value of said shares.” We consider the respondent's stock purchase an attempt to circum- vent the normal labor certification procedure. His “investment” fol- lowed unsuccessful attempts to obtain a labor certification as a hairdres- ser. Under the agreement with his employer his shares of stock must be returned to the corporation upon termination of his employment. The investor exemption should not become a means of circumventing the normal labor certification procedure for ordinary skilled or unskilled laborers, Matter of Ahmad, Interim Decision No. 2316 (BIA 1974). The nature of the investment must be such that it tends to guard against the possibility that the alien will compete with American labor for available skilled or unskilled positions, Matter of Heitland, 14 I. & N. Dec. 569 (BIA 1974). The record shows that the alleged purchase of shares of stock of Honey of Hawaii, Ltd. is, at best, an adjunct to the respon- dent's employment; that the shares of stock are to be returned to the corporation on the termination of his employment; that he has no control over his “investment”; and that he is, in fact, an ordinary employee competing with United States workers for an available position. There is no merit to the respondent's contention that the immigration judge improperly considered denials of applications for a labor certifi- cation as adverse factors. The adverse determination by the immigra- tion judge was not based on the denial of those applications. They merely show the sequence of the respondent's attempts to find some way for remaining in the United States. We reject the respondent's contention that a denial of his application for adjustment of status would violate the Treaty of Commerce and

586
 Interim Decision #2472 Navigation between the United States and Japan. The treaty has no bearing on applications for permanent residence. ORDER: The appeal is dismissed. Further order: Pursuant to the immigration judge's order, the re- spondent 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 that in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.

587