A. Birth out of Wedlock The codal provisions as amended established and defined the basic categories of children as follows: Children are either legitimate or illegitimate. Legitimate children are those who have been either born or conceived during a fully valid or putative marriage of their parents as well as those whose parents have married each other after conception thereof. Illegitimate children are those who have been voluntarily acknowledged as such by either parent or both parents as well as those who have been declared to be so by judicial decision.2 Regarding children born out of wedlock, the code provides that they may be acknowledged by either parent or both parents. In such cases, the affected children shall enjoy the rights assigned to them by law in respect to the acknowledging parent or parents.3 Acknowledgment of children shall be made by means of a public instrument which may be either notarial, issued before a judge and three capable witnesses, on a will, by a personal statement issued at the time of the registration of birth, or as a part of the marriage record of the parents.* A child who has not been voluntarily acknowledged by the parents may petition the courts to issue a declaration of filiation in regard with either one specific parent or both parents. The courts may issue such declaration in the following cases: (1) When the father, after having been notified of the child's petition, appears before the court and states under oath that he acknowledges the child as his own; (2) When the conception of the child may be positively linked to facts established as kidnapping and/or rape as well as any other form of illegal deprivation of personal freedom in which the parents were directly and personally involved as offender and victim; (3) In case of seduction involving the child's parents; (4) When there was a concubinary relationship between the parents at the time of the child's conception; and (5) When the alleged father has provided for or contributed to the support of the child in his capacity as father.5 In view of the above, it may be stated that, under the laws in force in 1954, children born out of wedlock, even when acknowledged by their parents, were assigned to the category of illegitimate children, unless other requirements were also met; they could not be legitimated by the mere acknowledgment by either parent or both parents. 2 C. Civ. I, arts. 30, 31 and 269. 3 C. Civ. I, arts. 267 and 271. 4 C. Civ. I, arts. 201 and 269. 5 C. Civ. II, arts. 277 and 289, as amended. B. Legitimation of Children The Civil Code as amended by Supreme Decree 94 of November 21, 1935, prescribes that the marriage of the parents to each other produces the effect of legitimating ipso jure the children conceived or born prior to the celebration of such marriage.' Those born prior to the celebration of the parents' marriage must be previously acknowledged in accordance with the legal formalities. Children born prior to the celebration of the marriage who were not acknowledged by either parent or both parents as illegitimate do not benefit with the ipso jure legitimation by the subsequent marriage of their parents. Such children were required to be acknowledged in exactly the same manner prescribed by the code for any illegitimate child, by both parents. This acknowledgment may take place at any time.8 It is therefore concluded that legitimation of children born out of wedlock required two basic elements: (1) acknowledgment of filiation by both parents, and (2) subsequent marriage of the child's parents to each other. As stated above, the ipso jure effect of the subsequent marriage of the parents is granted with limitations. R. del E. Compilación de Reformas al Código Civil, Leyes y Reglamentos Conexos 17 [Talleres Gráficos del Ministerio de Gobierno, Quito, 1942]. 'Id. art. II, amending C. Civ. I, art. 200. C. Civ. II, arts. 267 and 269, as amended. MATTER OF RUANGSWANG In Deportation Proceedings A-20549199 A-20549108 Decided by Board December 27, 1976 (1) Respondents who are husband and wife have conceded deportability and seek adjustment of status under section 245 of the Immigration and Nationality Act as nonpreference immigrants who are exempt from the labor certification requirement of section 212(a)(14) of the Act as provided in 8 C.F. R. 212.1(b)(4), based on the wife's investment of $13,000 in a dry cleaning establishment. The husband's eligibility depends on that of his wife. (2) Respondent wife does all of the work necessary in conducting the dry cleaning business in which she has invested, assisted only by her husband who works as a part-time employee. Under these circumstances, and notwithstanding respondent's monetary investment, respondent does not qualify for exemption from the labor certification requirement as an investor because her investment does not expand job opportunities in the United States; respondent's labor with respect to her investment places her in direct competition with United States citizens who are dry cleaning operators; and respondent is actually engaged in full-time labor for which it has not been shown that a shortage of able, willing, qualified and available workers exists in the area. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-remained longer ON BEHALF OF RESPONDENTS: Bert D. Greenberg, Esquire BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members This is an appeal from the immigration judge's denial of the respondents' applications for adjustment of status. In his decision, which was entered on August 18, 1975, the immigration judge found the respondents deportable and granted them the privilege of voluntary depar ture. The respondents, a husband and wife, are both natives and citizens of Thailand. The husband is 31 years of age; the wife is 30 years of age. They were both admitted to the United States on August 14, 1971, the husband as a nonimmigrant student, the wife as the spouse of a nonimmigrant student. They were authorized to remain until January 31, 1975, but remained thereafter. They conceded deportability. The respondents seek adjustment of status as nonpreference aliens1 who are exempt from the provisions of section 212(a)(14) of the Act under 8 C.F.R. 212.8(b)(4) on the basis of the wife's investment in a dry cleaning establishment. The male respondent's case is dependent upon the female respondent's. (Hereafter, the female respondent will be referred to as the respondent.) The immigration judge concluded that the respondent had not established eligibility for investor classification; he further decided that even if she had, he would deny the applications in the exercise of discretion, because the respondents had been employed in violation of their nonimmigrant status. The immigration judge considered that this adverse factor was not outweighed by the favorable factor that they are the parents of a United States citizen child. We agree with the conclusion of the immigration judge regarding eligibility and shall not reach the question regarding discretion. The provisions of 8 C.F.R. 212.8(b)(4) were amended effective October 7, 1976, but we shall consider this case under the prior version of the regulation, the one which was in effect when the respondent first applied for consideration thereunder. The amendment was accompanied by a statement that Forms I-526 (Request for Determination that Prospective Immigrant is an Investor) properly filed before the effective date of the amendment are to be processed in accordance with the regulation as it existed prior thereto. 41 Fed. Reg. No. 174, p. 37566 (9-7-76). The respondent submitted her Form I-526 on June 17, 1974. The applicable version of the regulation provides: The following persons are not considered to be within the purview of section 212(a)(14) of the Act and do not require a labor certification: . . . (4) an alien who establishes on Form I-526 that he is seeking to enter the United States for the purpose of engaging in a commercial or argicultural enterprise in which he has invested, or is actively in the process of investing, capital totaling at least $10,000, and who establishes that he has had at least 1 year's experience or training qualifying him to engage in such enterprise. The respondent testified and submitted evidence that she has invested more than $13,000 in her dry cleaning business. As evidence of her qualifying experience or training she submitted a translation of a document certifying that she had received a bachelor's degree in accountancy from Chulalongkorn University on April 16, 1969, and a statement from the Siam Motor Company, Ltd., Bangkok that she was employed by them from June 1969 until July 1971 doing budgeting and financial review. 1 1 Nonpreference numbers are currently available for natives of Thailand, according to the Visa Office Bulletin on Availability of Immigrant Visa Numbers for November 1976. The Service does not contest the amount of the respondent's investment or her qualifications to run the business. She testified that she operates the business alone and that her husband assists her about 28 hours per week. Her net income from the business was about $7,500 during 1974 (Tr. 8). Her profit or loss statement as of June 30, 1975, for the first six months of 1975 shows $9,094.31 total sales and a net operating profit of $6,038.85. She testified that she was making about $1,000 per month net profit during 1975 (Tr. 8). At the time that section 212(a)(14) was originally enacted, the drafters of the Immigration and Nationality Act stated that the purpose of the provision was to provide strong safeguards for American labor, to provide American labor protection against an influx of aliens entering the United States for the purpose of performing skilled or unskilled labor where the economy of individual localities is not capable of absorbing them at the time they desire to enter this country. H.R. Rep. No. 1365, 82nd Cong. 2nd Sess. (1952), reprinted in [1952] U.S. Code Cong. & Ad. News 1705. The 1965 amendment was designed to strengthen the controls even more. S. Rep. No. 748, 89th Cong. 1st Sess. (1965), reprinted in [1965] U.S. Code Cong. & Ad. News 3328, 3333. Section 212(a)(14) requires that each alien seeking to enter the United States for the purpose of performing skilled or unskilled labor to establish that "(A) there are not sufficient workers in the United States who are able, willing, qualified, and available. . . and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed." The certification requirement applies to the nonpreference category, which is the category applicable to the respondent. The desired effect of the requirement is to exclude an intending immigrant who would be likely to displace a qualified American worker or whose employment would have an adverse impact on the wages and working conditions of workers similarly employed in the United States. The implementing regulation on which the respondent relies, 8 C.F.R. 212.8, was designed to be consonant with the language and purposes of the Act; accordingly, we must construe the regulation in a manner which would be consistent therewith. It was not designed to provide a method of circumventing the normal labor certification requirements, Matter of Lee, Interim Decision 2415 (BIA 1975), Matter of Ahmad, Interim Decision 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 Takayanagi, Interim Decision 2472 (BIA 1976), Matter of Heitland, 14 I. & N. Dec. 563 (BIA 1974). Thus, notwithstanding that an alien has invested $10,000 or more in a |