In the matter at hand, the applicant's employment as an electronics technician and his investment in his employer's corporation are unrelated to each other as far as the employer is concerned. His ownership of company stock does not substantially improve his job security which does not ride on his personal investment in the corporate shares of his publicly owned employing corporation.

Section 212(a)(14) was incorporated in the Act as a measure designed to protect the livelihood of workers lawfully present within the United States. It was intended to prevent "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." Matter of Heitland, supra.

In Heitland the BIA further noted:

It is therefore necessary for us to adopt a test concerning substantial investments which comports with the congressional policy contained in section 212(a)(14). The investment must be more than a mere conduit by which the alien seeks to enter the skilled or unskilled labor market. Consequently, the investment either must tend to expand job opportunities and thus offset any adverse impact which the alien's employment may have on the market for jobs, or must be of an amount adequate to insure, with sufficient certainty that the alien's primary function with respect to the investment, and with respect to the economy, will not be as a skilled or unskilled laborer. (Emphasis supplied).

The present language of 8 CFR 212.8(b)(4), previously quoted, has been in effect since February 12, 1973 (see 38 F. R. 1379, January 12, 1973). Prior to the effective date of that amendment, 8 CFR 212.8(b)(4) declared as not being within the purview of section 212(a)(14) and exempt from the labor certification "an alien who will engage in a commercial or agricultural enterprise in which he has invested or is actively in the process of investing a substantial amount of capital."

In the paragraph reproduced above from Matter of Heitland, the BIA set forth certain criteria for determining whether an investment was a "substantial" one as that term was used in 8 CFR 212.8(b)(4) prior to its amendment. Nevertheless, it is our view that the amended language of that regulation must still "comport with the congressional policy contained in section 212(a)(14)", as the BIA has stated in that paragraph. Accordingly, we conclude that the criteria established by the BIA are equally applicable to cases of aliens seeking to qualify as "investors" for an exemption from the labor certification requirement under the present language of that regulation.

The applicant in the matter before us fails the test on all counts. He has entered the job market as a skilled laborer notwithstanding the finding of the U. S. Department of Labor that qualified residents are available to fill the position he now holds. We see his investment in

Transitron as a direct effort to offset the protective provisions of section 212(a)(14). His investment is insufficient to provide financial support without his entering the labor market as a skilled or unskilled laborer, which he has done, in order to supplement any income which his investment might produce.

We conclude that an alien who competes with United States citizens and lawful resident aliens for positions in the skilled or unskilled labor market cannot acquire an exemption from the labor certification requirement of section 212(a)(14) merely by purchasing over $10,000 worth of the outstanding common stock of the employing corporation. Based upon a thorough consideration of all the facts before us including representations made on certification, we find that the applicant does not qualify for exemption from labor certification contemplated by 8 CFR 212.8(b)(4). Accordingly the district director's decision will be affirmed.

It is ordered that the denial of the application be and is hereby affirmed.

MATTER OF HARRIS

In Deportation Proceedings

A-18975482

Decided by Board August 15, 1974 and October 30, 1974

The respondent, a native and citizen of Austria entered the United States as a fiancee of a United States citizen. They were married within 90 days of her entry and allegedly lived together as husband and wife for approximately three months thereafter. Respondent's application for adjustment of status to that of a permanent resident was filed on December 21, 1970, and sworn to before an immigration officer on February 16, 1971. However she and her husband were separated on February 24, 1971. Her application for permanent resident was denied on July 27, 1971, they were divorced June 20, 1972. The recording of the lawful admission for permanent residence of a fiancee under section 214(d) of the Immigration and Nationality Act, or in the alternative, adjustment of status under section 245 of the Act was denied in this case because eligibility for such recordation or adjustment depends upon the existence of a valid marriage which must remain viable at the time the application is ruled upon.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(1)]—Nonimmigrant remained

The respondent has appealed from the May 17, 1972 decision of the immigration judge in which he found her deportable as charged, denied her applications for permanent residence under sections 214(d) and 245 of the Immigration and Nationality Act, and granted her voluntary departure. The appeal will be dismissed, and the order of the immigration judge affirmed.

The respondent, a native and citizen of Austria, entered the United States on August 25, 1970 as a fiancée, intending to marry within 90 days of entry. She did marry her fiancé on November 21, 1970, and they

allegedly lived together as husband and wife for approximately three months thereafter. Her application for adjustment of status to that of a permanent resident was filed on December 21, 1970, and sworn to before an immigration officer on February 16, 1971. However, she and her husband were separated on February 24, 1971. Her application for permanent residence was denied on July 27, 1971.

Subsequently, the respondent and her husband were divorced on June 20, 1972, and while her appeal from the immigration judge's decision was pending here, she married another United States citizen, who filed a visa petition in her behalf. In light of this new fact, on July 31, 1973 we remanded the case to the immigration judge for further proceedings. However, before those proceedings could take place, the respondent's husband withdrew his visa petition on September 7, 1973, thus automatically revoking approval of the petition. 8 CFR 205.1(a)(1). The district director returned the case to us, and in an order dated November 5, 1973 we granted both the respondent and the Immigration and Naturalization Service time to comment on these developments, taking the case on certification to avoid any jurisdictional questions.

We now turn to a consideration of the merits of the case. The respondent denied all of the allegations in the order to show cause, but the immigration judge found that the Service had proved the truth of the allegations by clear, convincing, and unequivocal evidence. On appeal the respondent does not contest deportability but rather challenges the denial of relief under section 214(d) or section 245 of the Act.

The principal issue in this appeal concerns the purpose of Congress in enacting section 214(d) of the Immigration and Nationality Act, providing for a special visa petition on behalf of an alien fiancée or fiancé of a United States citizen, to be approved by the Attorney General, and also for a record of lawful admission for permanent residence, as follows: "... In the event the marriage between the said alien and the petitioner shall occur within three months after the entry and they are found otherwise admissible, the Attorney General shall record the lawful admission for permanent residence of the alien and minor children as of the date of the payment of the required visa fees."

The respondent did marry her fiancé within three months of her entry, and it is not suggested that she is not otherwise admissible. There are no allegations of fraud. The statute states that in such circumstances"... the Attorney General shall record the lawful admission for permanent residence of the alien. . . ." However, the immigration judge refused to grant adjustment of status under section 214(d) on the ground that eligibility for such adjustment depends upon the existence of a valid marriage which must remain viable at the time the application for permanent residence is being ruled upon." (Decision of May 17, 1972, p. 3).

The legislative history of section 214(d) shows that the intent of Congress was to facilitate marriages between Americans in the United States and their sweethearts abroad. H.R. Rept. No. 851, 91st Cong., 2d Sess. 2750, 2753, 2758 (1970). The new provision enabled fiancées and fiancés of United States citizens to avoid the long wait for immigrant status occasioned by the unavailability of nonpreference visa number for Eastern Hemisphere applicants and by the backlog for Western Hemisphere applicants. It also obviated the necessity for the United States. citizens to go abroad to be married, which was the only alternative before this enactment. Congress demonstrated no intention to put spouses who had entered with a fiancé(e) visa in a better position than others seeking immigration benefits on the basis of their marital relationships.

For the marital relationship to support a section 245 application for adjustment of status, the relationship must exist in fact as well as in law. In Matter of Lew, 11 I. & N. Dec. 148 (D.D. 1965), the application for permanent resident status based on marriage was denied. There the applicant's husband had obtained an interlocutory divorce decree, not to be final for three more months. The applicant claimed that since the divorce was not final yet, the marriage was still in existence, and that therefore adjustment of status under section 245 should have been granted. The district director found that the marital relationship was nonexistent and that it could not, therefore, serve as the basis for the issuance of a preference visa to the applicant as a spouse. Id. at 149. An unreported case, Matter of Molcilio, A-17894515 (BIA March 13, 1972), was concerned with spouses who lived together only briefly after their marriage and then separated, the respondent-wife living in Hawaii while her United States citizen husband lived in California, each working and supporting himself. In considering the respondent-wife's application for adjustment of status pursuant to section 245, we found that the marriage was unstable from the outset, that the respondent's residence in the United States was short (two years), that no hardship to the spouse was shown, and that there were no outstanding equities. We dismissed the respondent's appeal from the immigration judge's denial of adjustment of status.

As demonstrated above, a nonviable marriage has been held not to support adjustment under section 245 of the Act. We find in the legislative history no intent on the part of Congress to have one standard for marriages on which section 245 adjustment is based, and another less stringent standard for marriages on which section 214(d) recordation is based.

Consequently, we hold that neither a nonviable marriage nor a terminated marriage will support section 214(d) recordation of lawful admission for permanent residence, and that, just as a marriage must exist in