respondent deportable, denied her application for adjustment of status under section 245 of the Immigration and Nationality Act, but granted her the privilege of voluntary departure. The respondent, who challenges the denial of adjustment of status, has appealed from that decision. The appeal will be dismissed. The respondent is a native of Taiwan and a citizen of the Republic of China. She entered the United States in July of 1971 as a visitor, and thereafter had her nonimmigrant status changed to that of a student. She has remained beyond the authorized length of her stay as a student, and concedes deportability. The only significant issues in the case concern her application for adjustment of status. The respondent seeks section 245 relief as a nonpreference immigrant. The immigration judge found that she was not statutorily eligible for adjustment of status, because she failed to satisfy the labor certification requirements of section 212(a)(14) of the Act. We agree with the immigration judge. The respondent has presented alternative arguments with respect to her admissibility under section 212(a)(14). She initially contends that she does not need a labor certification because she will be supported by her husband who is a navigator for a foreign airline. The respondent, however, has testified that she desires to work (Tr. p. 14). The terms of section 212(a)(14) therefore apply to her. See Matter of Hoeft, 12 I. & N. Dec. 182 (BIA 1966 & 1967). The respondent secondly argues that she qualifies for the "investor" exemption from labor certification contained in 8 CFR 212.8(b)(4). The respondent, however, has not made an investment in any enterprise, nor has she committed herself to such an investment. Instead, she has merely been examining various business possibilities, and she does not appear likely to commit any funds to an investment unless she receives status as a lawful permanent resident. She is not "actively in the process of investing," as that phrase is used in 8 CFR 212.8(b)(4). Matter of Lui, 15 I. & N. Dec. 206 (BIA 1975). The respondent does not qualify for the "investor" exemption from labor certification. The respondent also advances several due process claims on appeal. She contends that the hearing was not recorded in accordance with 8 CFR 242.15. The typed transcript contains numerous omissions, evidently resulting from portions of the recording belt being inaudible. The respondent, however, has not alleged or shown any prejudice as a result of these omissions. The respondent additionally contends that the immigration judge erred in refusing to grant the respondent's motion to make available certain allegedly relevant Service records. The respondent desired to have the immigration judge take consideration of the Service's disposition of 24 "investor" cases, arguably similar to the respondent's case. The respondent claims that the Service had found these other aliens to be qualified under 8 CFR 212.8(b)(4) even though they did not intend to commit any funds to an enterprise until after they had received lawful permanent resident status. Although it would not have been improper for the immigration judge to take cognizance of Service action in analogous cases, the respondent has not been denied due process. Prior to our decision in Matter of Lui, supra, the "actively in process of investing" language of 8 CFR 212.8(b)(4) had not received much attention from us. There was no substantial body of precedent interpreting this phrase, and the immigration judge was free to reach his own reasoned conclusions regarding its meaning. The law was in a state of flux. Subsequent to the immigration judge's decision in this case, Matter of Lui, supra, resolved some of the questions posed by the phrase "actively in the process of investing." That decision governs this case and all similar cases. 8 CFR 3.1(g). From the administrative standpoint, the law on this question is now settled and will be applied uniformly. The immigration judge did not act arbitrarily in refusing to follow blindly the Service's alleged approach on an unsettled question of law. Cf. Matter of Park, 14 I. & N. Dec. 734 (BIA 1974). The decision of the immigration judge was correct. The appeal will be dismissed. ORDER: The appeal is dismissed. Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 31 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order. MATTER OF ALADIN In Visa Petition Proceedings A-20814137 Decided by Board August 29, 1975 Since under the law of Haiti adoption must occur when the child is less than 6 years of age, and since beneficiary was 13 years old at the time of adoption in Haiti, the adoption is invalid for immigration purposes. Hence, beneficiary is ineligible for immediate relative status under section 201(b) of the Immigration and Nationality Act, as amended, as the adopted child of the United States citizen petitioner. ON BEHALF OF PETITIONER: Pro se The United States citizen peititioner applied for immediate relative status for the beneficiary as her adopted child under section 201(b) of the Immigration and Nationality Act. In a decision dated May 23, 1975, the district director denied the petition, and the petitioner has appealed from that decision. The appeal will be dismissed. The beneficiary, born on April 21, 1961, is a native and citizen of Haiti. In support of the petition, the petitioner presented an extract from the Births Register in the Republic of Haiti which states that the beneficiary was adopted by the petitioner on January 21, 1974. The district director denied the petition on the ground that the two-year legal custody requirement of section 101(b)(1)(E) of the Act had not been met. In order to establish the eligibility of the beneficiary as the petitioner's adopted child for the purpose of conferring immigration benefits, the petitioner must show the existence of a valid adoption. The Haitian law on adoption, as set forth in a 1966 decree issued by President Duvalier and provided by the Library of Congress, states, in pertinent part: 1. Adoption is the act by which a person takes a child (a son or daughter) who is not his natural issue. This act is authorized to the benefit of any child of less than six years of age. .... Inasmuch as the beneficiary was thirteen years old at the time of the adoption, the adoption is invalid for immigration purposes. We need not address the question of whether the legal custody requirement of the Act has been met. The appeal will be dismissed. ORDER: The appeal is dismissed. MATTER OF HAMLIN In Visa Petition Proceedings A-21761104 A-21761106 A-21761108 Decided by Board August 29, 1975 Despite birth in an independent country of the Western Hemisphere, an alien child within the purview of section 202(b)(1) of the Immigration and Nationality Act, as amended, may be alternately charged to the foreign state of his accompanying alien parent (the beneficiary of an approved visa petition according him immediate relative status) and within such alternate chargeability may be accorded preference classification under section 203(a)(5) of the Act, as amended, conditioned on the later simultaneous applications by him and his accompanying parent for visas and for admission to the United States. ON BEHALF OF PETITIONER; Franklin S. Abrams, Esquire One Penn Plaza 250 West 34th Street New York, New York 10001 The United States citizen petitioner applied for preference status for the beneficiaries as his brother and sisters under section 203(a)(5) of the Immigration and Nationality Act. In a decision dated May 28, 1974 the district director denied the petition on the ground that preference categories were not available to natives of the Western Hemisphere. The petitioner moved for reconsideration on the ground that the beneficiaries were alternately chargeable to the country of birth of their father under the provisions of section 202(b)(1) of the Act. In a decision dated September 11, 1974, the district director denied the motion on the ground that no evidence had been submitted that the beneficiaries' father had been admitted as a lawful permanent resident of the United States or classified as an immediate relative. The district director certified his decision to us. Each of the beneficiaries was born in British Guiana, which is now the independent country of Guyana. The beneficiaries are all unmarried and under the age of twenty-one. The father of the beneficiaries, and of the petitioner, was born in Surinam (Dutch Guiana), although it appears 1 that he is now a citizen of Guyana. Surinam is a dependent colony of the Netherlands, and therefore not an independent country of the Western Hemisphere. The petitioner has submitted with the appeal a letter from the American Embassy, Georgetown, Guyana, which he claims to have submitted previously to the district director. The letter, which is dated February 8, 1972, indicates that the father was the beneficiary of an approved visa petition classifying him as an immediate relative. Section 202(b)(1) of the Act provides in pertinent part: an alien child, when accompanied by his alien parent or parents, may be charged to the same foreign state as the accompanying parent or of either accompanying parent if such parent has received or would be qualified for an immigrant visa . . . . The beneficiaries, though natives of the Western Hemisphere, are statutorily eligible for the benefits of this section, Matter of Chatterton, 14 I. & N. Dec. 82 (BIA 1972). We have not previously considered the precise factual situation presented here. In Matter of Ascher, 14 I. & N. Dec. 271 (BIA 1972, 1973), an analogous situation was presented. However, there the beneficiary was not a "child" within the meaning of the Act, and no determination was reached with respect to section 202(b)(1) of the Act. The case was, however, considered in light of section 202(b)(2) of the Act relating to alternate chargeability to the country of birth of an alien spouse. In Ascher, the spouse of the beneficiary, although ostensibly eligible for a visa, had not received one. We held that in that situation the district director could grant a conditional approval subject to the subsequent simultaneous application for visas and admission. We believe that the same approach should be followed here. Section 202(b)(1), like section 202(b)(2), requires that the beneficiary accompany the alien who is conferring the benefit of alternate chargeability. The term "accompany", though not defined in the Act, is defined in 22 CFR 42.1. See also Matter of Ascher, supra. There is nothing in the record to indicate that the father ever intends to make use of his approved visa petition. If the beneficiaries do not accompany him, then alternate chargeability is not available to them. Only if alternate chargeability is available may the beneficiaries qualify for the preference status sought. We shall remand the record to the district director for further inquiry. If he is satisfied that the father of the beneficiaries intends to enter the United States, he may issue a conditional grant of approval subject to later simultaneous applications for visas and admission. ORDER: The record is remanded. See Department of State, 9 Foreign Affairs Manual, Exhibits II and III to 22 CFR 42.50. |