MATTER OF KO In Deportation Proceedings A-20548879 Decided by Board June 17, 1976 (1) Operations Instruction 245.4(a)(6) which provides that a case will be held in abeyance where the sole basis for applicant's ineligibility for relief under section 245 of the Immigration and Nationality Act is the unavailability of a visa number occurring subsequent to the filing of the application is not applicable to a case where respondent's application for adjustment of status was denied for lack of a valid labor certification, because in such instance, the respondent's ineligibility for section 245 relief was based on a reason other than the unavailability of a visa number which had occurred subsequent to the filing of the application. (2) Matter of Ho, 15 I. & N. Dec. 692, distinguished. CHARGE: Order: Act of 1952-Section 241(a)(2)—[8 U.S.C. 1251(a)(2)]—Nonimmigrantremained longer ON BEHALF OF RESPONDENT: John B. Bartos, Esquire 4676 Admiralty Way, Suite 632 In a decision dated August 18, 1975, the immigration judge found the respondent deportable, denied his application for adjustment of status under section 245 of the Immigration and Nationality Act, and granted the respondent the privilege of voluntary departure. The respondent has appealed from the denial of his application for adjustment of status. The appeal will be dismissed. The respondent is a native and citizen of China who entered the United States in 1971 as a nonimmigrant student. The respondent has conceded deportability as a nonimmigrant who has remained beyond the authorized length of his stay. The only issues on appeal involve the denial of the respondent's application for section 245 relief. The respondent initially submitted his application for adjustment of status to the district director, prior to the commencement of these proceedings. At that time, the respondent sought section 245 relief as a nonpreference immigrant claiming exemption from the labor certification requirements of section 212(a)(14) as an investor within the contemplation of 8 CFR 212.8 (b)(4). The district director denied the respondent's section 245 application, finding that the respondent had not established his claim to investor status. The district director based his decision on the respondent's lack of training in the field in which he allegedly invested, and the fact that the respondent appears to be a minority shareholder in the business. The respondent evidently filed a motion to reconsider the district director. However, prior to the filing of that motion the district director had issued the order to show cause in this case, thus lodging jurisdiction over the section 245 application with the immigration judge. See 8 CFR 245.2(a)(1). At his hearing the respondent renewed his application for section 245 relief before the immigration judge. The immigration judge denied the application on the ground that a visa was not then available to the respondent as a nonpreference immigrant. See Department of State bulletin on the Availability of Immigrant Visa Numbers for August 1975. A review of recent Department of State bulletins on the Availability of Immigrant Visa Numbers indicates that visas have been unavailable to nonpreference aliens from China since June of 1975. In his brief on appeal, counsel for the respondent implicitly acknowledges the fact that a visa is presently unavailable to the respondent as a nonpreference immigrant. Counsel, however, seeks a remand on the basis of the Service policy expressed in Operations Instruction 245.4 (a)(6). In his brief, counsel also requests that the district director be required to process the respondent's application for a labor certification as a professional (Form MA7-50A). While it is not entirely clear from the record, it appears that the respondent desires to be classified as a preference immigrant under section 203(a)(3) of the Act. The Operations Instruction relied upon by the respondent basically provides for the holding in abeyance of any case in which an alien has submitted a section 245 application at a time when a visa number was available to him, but in which he is precluded from receiving that relief solely because a visa number is not available at the time the processing of the case is completed. The respondent contends that this Operations Instruction has application in this case because he submitted his section 245 application to the District Director at a time when a nonpreference number was available to him. We find, however, that the Operations Instruction has no bearing on this case because there is another basis for denial of the respondent's application for adjustment of status. This case, therefore, differs from Matter of Ho, 15 I. & N. Dec. 692, also decided today, because the respondent's ineligibility for section 245 relief is not solely related to the unavailability of an immigrant visa number. In order to be eligible for adjustment of status the respondent must meet the labor certification requirements of section 212(a)(14) of the Act. The respondent presently contends that he meets this requirement as an investor. The district director's decision denying the respondent's application for adjustment of status, however, calls into question many aspects of the respondent's investment. That decision appears to have been correct. For example, the respondent has not shown that he has assumed substantial responsibility for the direction and control of the enterprise as is required to qualify for the investor exemption. See Matter of Yang, 15 I. & N. Dec. 147 (R.C. 1974); Matter of Ko, 14 I. & N. Dec. 349 (Dep. Assoc. Commr. 1973). The respondent has therefore failed to meet the burden of proof requirements imposed by Matter of Ahmad, 15 I. & N. Dec. 81 (BIA 1974). In addition, the respondent has not shown that he is eligible for adjustment of status as a preference immigrant under section 203(a)(3) or (a)(6). We note that the pendency of these deportation proceedings does not bar the respondent from attempting to establish such eligibility by seeking approval of a petition filed under 8 CFR Part 204. The respondent is not presently eligible for adjustment of status under section 245. On this record, it has not shown that he meets the labor certification requirements of section 212(a)(14) of the Act. Furthermore, as has been indicated, a visa is not presently available to the respondent as a nonpreference immigrant. 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 MUNGUIA In Section 248 Proceedings A-21155436 Decided by Regional Commissioner June 21, 1976 An application filed under section 248 of the Immigration and Nationality Act to change nonimmigrant status from that of a visitor for pleasure to that of a student as defined in section 101(a)(15)(F)(i) of the Act is denied in the case of a 14-year-old alien who seeks such change in order to enroll in a course of cosmetology in the State of Louisiana because the laws of that state require that a person must be at least 15 years and 3 months of age at the time of entry into a licensed school of cosmetology. ON BEHALF OF APPLICANT: Eugene Barriffe, Jr. 1020 St. Andrew New Orleans, Louisiana 70130 The applicant is a single, 14-year-old native and citizen of Honduras. She was admitted to the United States on March 15, 1976, as a visitor for pleasure, with authorized stay until April 14, 1976. Her application for change of nonimmigrant status was filed on April 7, 1976. Attached, was a Certificate of Eligibility, Form I-20, reflecting enrollment in a one-year course of study in cosmetology in Louisiana. Also submitted was an affidavit of support from a resident alien cousin of applicant, and evidence that the cousin is employed as a cashier at $2.50 per hour. The application was denied by the district director on grounds that the Louisiana State Board of Cosmetology prohibits the enrollment of cosmetology students who are less than 15 years and 3 months of age; that the application was an attempt to prolong the stay of applicant in the United States; and that insufficient evidence of financial support had been submitted. On appeal, Counsel for applicant submitted a statement from applicant's mother, in which the care and custody of applicant while in the United States was given to the husband of applicant's cousin. Also submitted was a further affidavit of support from the present guardian of applicant guaranteeing her financial support, and reflecting he has an annual income of $9,000.00. The affidavit also reflects the affiant has a spouse and two minor children, ages 32 and 1 year, dependent upon him for support. Section 248 of the Immigration and Nationality Act, reads, in part: "The Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification..." (Emphasis supplied.) The proceedings, including the material submitted on appeal have been carefully reviewed. Although new assurances of financial support were submitted, the sponsor does not have three other persons dependent upon him for support. Further, the record reflects that the fee of fifty dollars for filing the appeal was paid by the use of two checks, one of which was from a legal assistance group, a service for indigent persons. Failing a satisfactory explanation of why a social service for indigent persons paid a part of the required fee, it must be assumed that the affidavits of support cannot be taken at face value, and that ground of denial must stand. The charge that the filing of this application was a device to prolong the stay of applicant is without foundation, and it must be discounted as a supposition. Finally, the remaining question to be resolved is whether or not the age requirements of the Louisiana State Board of Cosmetology are an issue here. The prohibition of the Board is based upon Part B, Section 37502, of the Cosmetology Act of the State of Louisiana, which states in part, that a person must be at least 15 years and 3 months of age at the time of entry into a licensed school of cosmetology. This requirement is based upon Part A of the same Section, which requires a person to be at least 16 years of age to be eligible for licensing examination. The Occupational Outlook Handbook of the United States Department of Labor reflects that cosmetologists shampoo, cut, set, straighten, bleach and tint hair. They also may give manicures and scalp and facial treatments. Since some of the functions performed by a cosmetologist could cause long-term harm to a patron if not intelligently and properly performed, safeguards for the patron in the form of restrictive measures, were incorporated into the Cosmetology Act and they should be upheld. Further, this Service does not condone any violation of Federal, State, or Municipal ordinance by an alien in the United States, and to approve the application would in effect do just that. I must conclude that the decision of the district director was correct and proper, and that decision will be affirmed. ORDER: It is ordered that the decision of the district director is affirmed and the appeal is dismissed herewith. |