have to go north. Fearing a recurrence of the ill health he had experienced previously when he had gone north to work, he requested an assignment in California but was told there was no work there. He then tried unsuccessfully to find employment as a sheepherder on his own, finally accepting a position on a cattle ranch. In October 1972 he again approached the Association, requesting work as a sheepherder, but was told that his case was in the hands of the Immigration and Naturalization Service. The immigration judge terminated these proceedings on the basis of our decision in Matter of Garde-Mugueta, supra, another case involving a sheepherder and the Western Range Association. In that opinion we quoted from the contract between the Association and the herder, which contained a provision requiring action by the Immigration and Naturalization Service to attempt to transfer the herder to another association or employer if the efforts of the Western Range Association and the herder to do this failed. In that case we terminated proceedings on the ground that this provision had not been complied with. We now recede from our holding in Matter of Garde-Mugueta, supra. The contract between the respondent and the Western Range Association is not part of the record. Regardless of whether it was identical with the contract referred to in Garde-Mugueta, it is clear that the Immigration and Naturalization Service was not a party to it. The Service was thus not bound by its provisions, and would not have had any authority to seek other employment for the respondent. The respondent admits that he took employment outside the Association and outside the industry which had petitioned for him. This is clearly a violation of his status. We shall remand the case to the immigration judge for the entry of a new decision and for the consideration of any applications for discretionary relief which may be made. 1 ORDER: The decision of the immigration judge is reversed, and the case is remanded to the immigration judge for further proceedings in accordance with the above opinion. 1 Board Member Irving A. Appleman abstained from consideration of this case. MATTER OF VON PERVIEUX In Deportation Proceedings A-19679369 A-19679370 Decided by Board July 24, 1975 Nothwithstanding respondent, a native of Argentina, is alternately chargeable to the quota of the country of birth of his spouse (Italy) under section 202(b)(2) of the Immigration and Nationality Act, as amended, and is the beneficiary of an approved sixth preference visa petition with a labor certification, as a native of a country of the Western Hemisphere he is precluded by the provisions of section 245(c) of the Act from adjustment of his status to that of a lawful permanent resident under section 245. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant -remained longer than permitted (both respondents) ON BEHALF OF RESPONDENTS: Filindo B. Masino, Esquire 1420 Walnut Street Philadelphia, Pennsylvania 19102 ON BEHALF OF SERVICE: Robert T. Griffin In a decision dated January 24, 1975, after a reopened hearing, the immigration judge denied the respondents' applications for adjustment of status under section 245 of the Immigration and Nationality Act, and she granted the respondents the privilege of departing voluntarily from the United States in lieu of deportation. The respondents have appealed from that decision. The appeal will be dismissed. The male respondent is a native and a citizen of Argentina. His wife, the female respondent, is a native of Italy and a citizen of Argentina. The male respondent is apparently the beneficiary of an approved sixth preference visa petition with a labor certification. The female respondent has no labor certification, nor is she the beneficiary of an approved visa petition. Consequently, her application for adjustment of status under section 245 of the Act is dependent upon the success of the male respondent's application. The male respondent evidently is alternately chargeable to the quota of his spouse's country, Italy, under section 202(b)(2) of the Act. The issue on appeal is whether, by reason of such alternate chargeability, the male respondent is eligible to apply for adjustment of status despite his birth in the Western Hemisphere. See section 245(c) of the Immigration and Nationality Act. Matter of Ascher, 14 I. & N. Dec. 271 (BIA 1972, 1973), involved in visa petition filed in behalf of a native of the Western Hemisphere who was attempting to adjust his status by claiming alternate chargeability to the quota of his spouse's country under section 202(b)(2) of the Act. In that case we stated: Inasmuch as the beneficiary was born in a foreign country of the Western Hemisphere, he could not be granted adjustment of his status under section 245 of the Immigration and Nationality Act. Therefore, the spouses will have to proceed abroad for the purpose of filing simultaneous applications for visas. Although Matter of Ascher was a visa petition case, we believe that the foregoing is a correct statement of the law applicable when a Western Hemisphere native seeks adjustment of status by claiming alternate chargeability under section 202(b)(2) of the Act. Section 245(c) of the Act specifically precludes an application for adjustment by "any alien who is a native of any country of the Western Hemisphere or of any adjacent island named in section 101(b)(5)." Section 202(b) of the Act provides certain exceptions to quota chargeability. The prohibition contained in section 245(c), however, relates solely to birth in a foreign country of the Western Hemisphere, and has nothing to do with quota chargeability. Consequently, alternate chargeability under section 202(b) cannot remove a Western Hemisphere native from the scope of section 245(c) of the Act. Neither of the respondents is eligible for adjustment of status under section 245 of the Act. The appeal will be dismissed. ORDER: The appeal is dismissed. Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily within such time and under such conditions as the district director shall specify; and in the event of failure so to depart, the respondents shall be deported as provided in the immigration judge's order. MATTER OF LEE In Deportation Proceedings A-19110844 A-20048328 Decided by Board July 28, 1975 (1) Respondent's promissory note to invest an additional $5,000 in a restaurant if his status is adjusted may not be considered in computing the amount of an investment under 8 CFR 212.8(b)(4) for the purpose of obtaining an exemption from the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act, as amended, as an investor. Since he has actually invested only $5,000 in the business, he is ineligible for exemption under existing regulations. (2) In the absence of a showing that respondent's investment of $5,000 in a restaurant in which he is working as a cook is actually employed in the operation of the business; has tended to expand job opportunities; and is of an amount adequate to insure with sufficient certainty that his primary function with respect to the investment, and with respect to the economy, will not be as a skilled or unskilled laborer (when, on the contrary, his present employment as a cook seems to place him in competition with American labor), he has failed to establish that he is exempt from the labor certification requirement of the Act, as an investor, under the provisions of 8 CFR 212.8 (b)(4) prior to amendment in 1973. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)—Nonimmigrant-remained longer (both respondents) ON BEHALF OF RESPONDENTS: Albert C. Lum, Esquire 970 Hill Street, Suite 202 Los Angeles, California 90012 ON BEHALF OF SERVICE: Stuart Shelby In a decision dated November 30, 1972, the immigration judge found the respondents deportable as charged, denied their applications for adjustment of status under section 245 of the Immigration and Nationality Act, and granted them the privilege of departing voluntarily from the United States in lieu of deportation. The respondents have appealed from that decision. The appeal will be dismissed. The alien respondents, husband and wife, are natives and citizens of China. At the hearing, they conceded deportability. The only issue on this appeal concerns the male respondent's application for adjustment of status as an alien who is exempt from the labor certification requirements of the Act by virtue of the "investor" exemption contained in 8 CFR 212.8(b)(4). The male respondent formally presented his "investor" claim prior to the 1973 amendment of 8 CFR 212.8(b)(4). His claim will therefore be judged by whichever formulation of the regulation is more favorable to him. Matter of Heitland, 14 I. & N. Dec. 563 (BIA 1974); Matter of Ko, 14 I. & N. Dec. 349 (Dep. Assoc. Comm. 1973). The male respondent claims to have invested $10,000 in a Chinese restaurant in which he is presently working as a cook. He has submitted a "general partnership agreement" stating that in return for an investment of $10,000 he will receive 25 percent of the profits of the business. He has submitted a canceled check for $5,000 made out to the restaurant, and he also has presented what purports to be a promissory note obliging him to pay an additional $5,000 within 120 days from the date of signing of the "general partnership agreement." At the hearing, however, the respondent indicated that the other partners have agreed that the $5,000 covered by the note will not become due unless and until his status is adjusted to that of a lawful permanent resident of the United States (Tr. pp. 5, 23). Assuming arguendo that a promissory note may be considered in computing the amount of an investment under 8 CFR 212.8(b)(4), we do not believe that this particular note constitutes part of the respondent's investment. The note merely represents an intention by the respondent to invest an additional $5,000 in the restaurant if he has his status adjusted. An alien who is deferring a portion of his capital investment pending approval of his application for adjustment of status cannot be said to be one who has "invested" or is "actively in the process of investing" such capital. Matter of Lui, 15 I. & N. Dec. 206 (BIA 1975). The respondent's investment in the restaurant business is, at best, the $5,000 evidenced by his personal check to the restaurant. Consequently, he does not meet the $10,000 requirement of the present regulations. The remaining question is whether the respondent could qualify as an "investor" under the earlier version of the regulations. In Matter of Heitland, supra, we overruled our decision in Matter of Finau, 12 I. & N. Dec. 86 (BIA 1967), and held that in order to qualify for the "investor" exemption under the old regulations: 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. In Matter of Ahmad, 15 I. & N. Dec. (BIA 1974), we noted that the "investor" exemption should not become a means of circumventing the |