and his immigration was sponsored by a brother who had lived in the United States for several years and was earning approximately $85.00 a week in permanent employment. The special inquiry officer was fully justified in concluding that the respondent was not likely to become a public charge, and, in the light of the judicial interpretation of section 212 (a) (15) and the pertinent administrative regulations and instructions, that he was admissible in the absence of an employment offer.

The respondent's misrepresentation, however, did shut off a line of inquiry relevant to his eligibility for a visa. It may be assumed that if the consular officer had known that the work offer was spurious, he would have examined the evidence of support more carefully. It does not appear, however, that this would have resulted in a proper determination that the respondent was excludable. Further investigation of the relationship between the sponsor and the respondent would have shown that the sponsor was a devoted brother who had in the past sent money to his family in Mexico and who was genuinely interested in assisting the respondent; that, indeed, he had assisted him in his his immigration efforts by paying $350 for the work offer. Further examination also would have disclosed that the respondent had other relatives in the United States who were willing to assist him in finding work. There is nothing in this case to suggest that further investigation would have disclosed any reasonable ground for the proper denial of a visa. In view of the particular circumstances of this case, it appears therefore that the respondent's misrepresentation with respect to the work offer was not of a material nature.

The Commissioner seeks to distinguish this case from Matter of Sand B—C—, on the ground that "this record establishes that the respondent was in the very act of participating in one or more crimes against the United States at the very moment he got the visa and unquestionably would not have received the visa if the forgery had been known." The fact that the respondent committed a crime against the United States at the very moment he received his visa is not peculiar to this case. It would seem that virtually every alien who at the time of his visa application makes a misrepresentation "which was calculated to induce action or reliance by an agency of the Government" (Brandow v. United States, supra) violate 18 U.S.C. 1001 at that very moment. Accordingly, this case is not distinguishable from the situations normally covered by Matter of S― and B—C—, supra.

In view of the findings below that the respondent did not know that Miranda had forged the work offer, I am not confronted here with the problem as to whether Matter of S- and B-C- also applies to a situation where a misrepresentation to the consular officer shuts off a

line of inquiry into a crime other than the misrepresentation itself or other than a wrongdoing inseparably connected with it. Cf. Matter of L-D-L-R, 9 I. &. N. Dec. 623.

III

The Commissioner finally urges that the respondent's misstatements not only constituted a material misrepresentation within the meaning of section 212(a) (19) but that they vitiated the visa itself and thus rendered the respondent inadmissible under section 212 (a) (20), supra. It has been consistently recognized, however, that the type of misrepresentation which invalidates a visa is substantially identical with that which renders the alien excludable under section 212 (a) (19). See Matter of S-C-,7 I. & N. Dec. 76, 89-90, and the authorities cited therein. This rule appears to be correct and in accord with the general proposition that a representation invalidates a visa only if it is material or amounts to a fraud.

For the foregoing reasons, the decision of the Board of Immigration Appeals is affirmed.

Interim Decision #1313

MATTER OF KOBAYASHI AND DOI

In SECTION 248 Proceedings

A-13054614-5

Decided by District Director July 3, 1963

Approved by Regional Commissioner August 26, 1963 Approved by Deputy Associate Commissioner December 19, 1963

Since managerial employees charged with the training or instruction and supervision of entertainers and waiters in a theatre restaurant are not employed in the "responsible capacity” required by 22 CFR 41.41, they are not properly classifiable as nonimmigrant employees of a treaty investor under section 101 (a) (15) (E) (ii) of the Immigration and Nationality Act.

Both applicants are natives and citizens of Japan who last entered the United States on August 29, 1961 at which time they were admitted as nonimmigrants of the class described in section 101 (a) (15) (H) (i) of the Act. Their last extension of stay expired on June 30, 1963. By their present applications, filed on May 6, 1963, they seek to change their status to that of a nonimmigrant employee of a treaty investor as defined in section 101 (a) (15) (E) (ii). The applications were filed while they were continuing to maintain the status under which they were first admitted and their prospective employer, Kiyoshi Sakurai, has invested a substantial amount of capital in a theater restaurant in Honolulu called the Ishii Gardens, Inc. (On July 1, 1963 he was granted a change of his nonimmigrant status from visitor to treaty investor.)

The minimum statutory requirements have been met and the sole issue herein is whether the applicants are properly classifiable as "employees of a treaty investor".

I find no legal or administrative precedent setting out a clear definition of an "employee of a treaty investor" nor does the legislative history of section 101(a) (15) (E) (ii) throw any light on the question.

The pertinent State Department regulation (22 CFR 41.41) requires merely that an employee be "employed by a treaty investor in a responsible capacity".

The treaty in question is the Treaty of Friendship, Commerce and Navigation between the United States and Japan. It was signed in Tokyo, Japan on April 2, 1953 and entered into force on October 30, 1953 (4 UST 2063; TIAS 2863). The pertinent portions of the treaty are Articles I and VIII, which read:

Article I. Nationals of either party shall be permitted to enter the territory of the other party and to remain therein: (a) for the purpose of carrying on trade between the territories of the two parties and engaging in related commercial activities; (b) for the purpose of developing and directing the operations of an enterprise in which they have invested or in which they are actively in the process of investing a substantial amount of capital; and (c) for other purposes subject to the laws relating to the entry and sojourn of aliens.

Article VIII. Nationals and companies of either party shall be permitted to engage, within the territories of the other party, accountants and other technical experts, executive personnel, attorneys, agents and other specialists of their choice. Moreover, such nationals and companies shall be permitted to engage accountants and other technical experts regardless of the extent to which they may have qualified for the practice of a profession within the territory of such other party, for the particular purpose of making examinations, audits, and technical investigations exclusively for, and rendering reports to, such nationals and companies in connection with the planning and operation of their enterprises, and enterprises which they have a financial interest, within such territories.

Applicant Kobayashi is to be the manager of the Japanese Dancing and Entertainment Department of the restaurant; applicant Doi is to be the manager of the Service Department. In an interview conducted on May 16, 1963, an attempt was made to ascertain precisely the duties of these so-called managerial positions. The interview elicited only the information that Miss Kobayashi is to train and supervise the entertainers in Japanese art, culture and tradition. Miss Doi is to instruct and supervise 10 or more waiters and waitresses in the art of preparing and serving Japanese foods.

These positions, so vaguely described in the record, are not the accountants, technical experts, executive personnel, attorneys, agents and other specialists contemplated by the Treaty. If anything, they are service personnel, hired at a rather meager salary ($200 a month) to assist in the operation of a restaurant. They will have little to do with directing the operations of the enterprise.

Even conceding, arguendo, that these positions could fit the category of "specialists" mentioned in the treaty, there remains the question of the applicants' ability to fill these positions. The record establishes only that they are entertainers of a type commodity referred to as line dancers. (Indeed, their original classification as persons of distinguished merit and ability under section 101(a) (15) (H)(i) is highly questionable but is not in issue here.) The record is completely devoid of any evidence tending to show that these applicants have even slight experience in the managerial or executive field.

It is concluded that the applicants have failed to establish that they will be employed in the responsible capacity required by 22 CFR 41.41 and that they are accordingly not properly classifiable as nonimmigrant employees of a treaty investor under section 101 (a) (15) (E) (ii).

ORDER: It is ordered that the applications be denied.