MATTER OF HEUNG

In Visa Petition Proceedings

A-21020882

Decided by Board November 25, 1974

In order to support a claimed brother and sister relationship a petitioner has to establish that he and the beneficiary are or once were "children of a common parent" within the meaning of section 101(b)(1) and (2) of the Immigration and Nationality Act. Petitioner's mother married the father of the beneficiary in 1974. By virtue of that 1974 marriage, the beneficiary became the stepchild of petitioner's mother through operation of section 101(b)(1)(B) of the Act, and petitioner's mother became the parent of the beneficiary within the meaning of section 101(b)(2). Therefore, the petitioner and beneficiary have a common parent for immigration purposes, and the petition under section 203(a)(5) of the Act should be approved, notwithstanding there is no consanguineous relationship between petitioner and beneficiary. Matter of Campbell, 13 I. & N. Dec. 552 (BIA 1970), overruled.

ON BEHALF OF PETITIONER: Joseph P. Fallon, Jr., Esquire

30 Hotaling Place

San Francisco, California 94133

The United States citizen petitioner applied for preference status for the beneficiary as his stepsister under section 203(a)(5) of the Immigration and Nationality Act. In a decision dated August 16, 1974, the district director approved the visa petition, concluding that the petitioner and the beneficiary should be regarded as "brother" and "sister" within the meaning of the Act. Inasmuch as this conclusion is in conflict with our decision in Matter of Campbell, 13 I. & N. Dec. 552 (BIA 1970), the district director has certified his decision to us pursuant to the provisions of 8 CFR 3.1(c). We shall overrule Matter of Campbell, and affirm the decision of the district director.

In Matter of Campbell, supra, we held that a United States citizen petitioner could not confer a fifth preference classification upon her stepsister, since they were not "sisters of the whole or half blood" in that the petitioner and the beneficiary did not have a common natural parent. However, in cases dealing with adoption, we have recognized that individuals may qualify as "brothers and sisters" by virtue of adoption in accordance with section 101(b)(1)(E), even though such a relationship is not consanguineous. Matter of Fong, 10 I. & N. Dec. 497

(BIA 1964); Matter of Butterly, 14 I. & N. Dec. 460 (BIA 1973). We overrule our holding in Matter of Campbell, supra, because it is inconsistent with the reasons underlying the foregoing decisions.

We agree with the district director that the definitions of the terms "parent" and "child" in section 101(b)(1) and (2) should be applied in determining whether an alien qualifies as a "brother" or "sister" within the meaning of section 203(a)(5). We have employed such definitions in similar instances. See, e.g., Matter of Coker, 14 I. & N. Dec. 521 (BIA 1974), where we held that in order to qualify as a "daughter" for preference purposes, a beneficiary must once have qualified as a "child" of the petitioner under section 101(b)(1), and Matter of Kim, 14 I. & N. Dec. 561 (BIA 1974), where we held that a beneficiary who fails to qualify as a legitimated child under section 101(b)(1) is ineligible for preference status under section 203(a)(5) as the "brother" of the petitioner through the paternal relationship. In support of a claimed brother or sister relationship, a petitioner has to establish that he and the beneficiary are or once were "children" of a common "parent" within the meaning of section 101(b)(1) and (2) of the Act.

In this case, the petitioner's mother, Helen Cheung Heung, married Joseph Wing Kau Wong in 1949. The petitioner was born of this marriage in 1952. The petitioner's parents were divorced in 1955, and the petitioner's mother married Bernard Kwok Hing Heung in 1974. The latter had also been married previously, and the beneficiary was the legitimate child of that prior marriage, which ended in divorce in 1971.

By virtue of the 1974 marriage, the beneficiary became the stepchild of Helen Cheung Heung, through operation of section 101(b)(1)(B) of the Act. Conversely, Helen Cheung Heung became the parent of the beneficiary within the meaning of section 101(b)(2). Helen Cheung Heung, of course, already qualifies under the Act as the parent of her son, Alan Shui Lun Wong, the petitioner herein. Thus within the context of the Immigration and Nationality Act, the petitioner and the beneficiary have a common "parent", namely Helen Cheung Heung.

Since the petitioner and the beneficiary are "children" of a common "parent" within the meaning of section 101(b)(1) and (2) of the Act, they may be regarded as "brother" and "sister" for purposes of section 203(a)(5). Accordingly, we affirm the decision of the district director. ORDER: The decision of the district director is affirmed.

MATTER OF YANG

In Section 245 Proceedings

A-18534450

Decided by Regional Commissioner December 4, 1974

The applicant for adjustment of status under section 245 of the Immigration and Nationality Act sought exemption from the labor certification requirement of section 212(a)(14) of the Act as an investor, pursuant to 8 CFR 212.8(b)(4). The investor status was claimed on the basis of applicant's purchase of $10,000 in shares of common stock of his employer's company (less than 1/10 of 1% of the outstanding shares). The application is denied for the reasons that the $10,000 investment in the company's stock had no bearing on any risk of the success or failure of the enterprise; it did not expand job opportunities for workers in this country; and because applicant, who was employed as a technician by the corporation, as one of 1,500 employees, was simply entering the job market without the required labor certification.

ON BEHALF OF APPLICANT: Joseph F. O'Neil, Esquire

100 State Street

Boston, Massachusetts 02109

This matter is before the regional commissioner on certification by the district director who on July 24, 1974 denied the application on the ground that the applicant is subject to the requirement of section 212(a)(14) of the Immigration and Nationality Act, as amended, does not have the labor certification for which that section provides, and is therefore inadmissible to the United States for permanent residence. Section 212(a)(14) provides, in pertinent part, as follows and makes the following aliens inadmissible to the United States:

(14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, 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. . . . .

Federal Regulations provide for the exemption of certain classes of aliens from the labor certification mentioned above. One such class is defined in 8 CFR 212.8(b)(4) as follows:

(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 agricultural 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 applicant claims to qualify for this exemption from labor certification requirements as an "investor."

He is a 44-year-old native and citizen of China who was admitted to the United States as a nonimmigrant student on February 20, 1969. Upon completion of his course of study in electronics in January of 1971 he was granted permission to engage in employment as practical training as a senior television technician at a Boston department store. On January 14, 1972 the Secretary of Labor, through his designated agents, denied an application for a labor certification filed by the department store in behalf of the applicant and dismissed an ensuing appeal therefrom. In dismissing the appeal, the Department of Labor said, "Information made available to this office indicates a considerable number of U.S. workers are available possessing the job classification in question." On April 26, 1972, he applied for status as a permanent resident claiming exemption from the labor certification requirement stating that he would be a full time student for two years studying electronic engineering technology and that his wife would support him. His wife, a native and citizen of El Salvador, had already completed her studies here and had engaged in employment for eighteen months as practical training. She had also been denied a labor certification by the Department of Labor and had been granted a period of voluntary departure from the United States pending completion of her husband's studies. The applicant's request for permanent residence was denied on November 15, 1972, and he was instructed to depart from the United States by March 1, 1973.

He did not depart but in June of 1973 accepted unauthorized employment as an electronics technician with Transitron Electronics Corporation of Wakefield, Massachusetts. On June 18, 1974, the U. S. Department of Labor denied an application for a labor certification submitted by Transitron for the applicant's employment as an electronics technician because qualified resident workers were available. Thereafter on June 26, 1974 the applicant purchased $10,000 worth of the outstanding common stock of his employer, the Transitron Electronics Corporation, and filed the instant application two days later seeking permanent resident status as an investor exempt from the labor certification under 8 CFR 212.8(b)(4).

In denying the application the district director cited the Matter of Ko, 14 I. & N. Dec. 349 (1973), which held that "engaging" in an enterprise within the purview of 8 CFR 212.8(b)(4) contemplates full-time en

gagement to an extent which demonstrates an assumption of risk and responsibility for the direction and control of the enterprise. The district director concluded that the applicant, a salaried employee of the corporation, assumes no risk and responsibility for the direction and control of the enterprise. He further found that the mere purchasing of $10,000 worth of common stock "over the counter" did not qualify the applicant for "investor" status as contemplated by the Federal Regulations.

Counsel, by brief on appeal, has attacked the district director's decision and asserts that the applicant has assumed a very real risk by the investment of $10,067.50 in Transitron Corporation. Counsel further maintains that the district director erred when he concluded that the applicant has assumed no responsibility for the direction and control of the enterprise because, as a shareholder, the applicant is entitled to perform such functions as voting at shareholder meetings, and the giving of written consents with respect to: (1) election and removal of officers; (2) adoption, amendment, and repeal of By-Laws; (3) shareholder resolutions, including ratification of Board of Directors' action; (4) extraordinary corporate matters including reorganization, merger, and disposition of assets.

Obviously, investment in common stocks involves an element of risk. However, we find in the case at hand that the risk relates entirely to the personal investment of the applicant. His $10,000 has no bearing on any risk to the success or failure of the "enterprise". His job as one of 1,500 employees of the firm does not rise or fall on his investment. It depends entirely on managerial considerations, whether he performs as required by his employer. To say that his ownership of less than one-tenth of one percent of the outstanding common shares of the corporation places the applicant in a position of responsibility for the direction and control of the enterprise is, in our opinion, pure fantasy.

Counsel cites the Matter of Heitland, 14 I. & N. Dec. 563 (1974), and paraphrases a portion of that decision as "the investment must tend to expand job opportunities and thus offset any adverse impact which the alien's employment may have on the market for jobs, . . ." He urges that the applicant's investment of $10,067.50 will have the effect of tending to expand job opportunities for American workers. We reject this position as erroneous on its face and factually indefensible.

In Heitland the Board of Immigration Appeals also said:

The regulation would be inconsistent with the statute were it to be construed to grant a labor certification exemption to an alien with an idle investment of a modest magnitude who might then be forced to enter the normal labor market in order to supplement the income from the investment. Rather than permitting an alien to usurp an existing job opportunity, 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. (Emphasis supplied).