MATTER OF UNIVERSITY OF CALIFORNIA MEDICAL CENTER

In VISA PETITION Proceedings

SFR-N-3576

Decided by Regional Commissioner January 17, 1964

An alien is ineligible for nonimmigrant classification under section 101 (a) (15) (H) (i), Immigration and Nationality Act, if a first preference petition in his behalf has been approved for the same position and the position is permanent in nature; the filing of a first preference petition may indicate that the position is permanent in nature; classification as a nonimmigrant under section 101 (a) (15) (H) (i) may not be used as a substitute for classification under section 203 (a) (1) to overcome inability to obtain a quota visa promptly because of oversubscription of the quota.

DISCUSSION: This case comes before the Regional Commissioner on certification by the District Director, San Francisco who on October 18, 1963 denied the application for the following reason:

The petition is denied as the position to be filled is permanent. To be classified as a nonimmigrant, the position to be filled must be temporary in nature. A first preference immigrant visa petition was previously approved in behalf of the beneficiary for the same position.

Petitioner, the University of California, San Francisco Medical Center, San Francisco, California is engaged in training and research in the fields of medicine, nursing and pharmacy and desires to import beneficiary to assume the position of an assistant research biochemist to be in charge of research into the changes in steroid hormones with age, nutrition and disease.

Beneficiary is a 38-year-old married male, native and citizen of Egypt. He was in the United States as an exchange student from August 28, 1955 to November 24, 1960 when he departed to Cairo, Egypt to fill the position of head of the Cancer Research Unit, National Research Center in Cairo, Egypt.

On June 24, 1963 the same petitioner submitted a petition to classify the beneficiary for status as a first preference alien under section 203 (a)(1) of the Immigration and Nationality Act to fill the same position for which now petitioned under section 101 (a) (15) (H)(i). That

petition was approved January 18, 1963 and is valid to July 18, 1964. However, a quota number is not now available. (United States Department of State quota list of January 2, 1964 shows the priority date for the United Arab Republic for first preference applicants is December 26, 1962.)

From a study of all the facts in the case, it is concluded that the position for which the beneficiary's services are sought is of a permanent nature. The petitioner's prior action in filing a petition to accord the beneficiary first preference classification under the quota is indicative of the fact that the petitioner also had so concluded.

The petitioner's urgent need for the beneficiary's services is conceded, and it is regrettable that the oversubscribed condition of the quota to which the beneficiary is chargeable prevents him from obtaining an immigrant visa promptly. However, classification as a nonimmigrant under section 101 (a) (15) (H) (i) of the Immigration and Nationality Act was not meant to be a substitute for classification under section 203 (a)(1) of the Act, to be invoked when the oversubscribed condition of a beneficiary's quota blocks the prompt issuance of an immigrant visa. The former classification involves work of a temporary nature, while the latter classification is not so restricted. Since the position here involved is of a permanent nature, the petition may not be approved to accord the beneficiary classification under section 101 (a) (15) (H) (i) of the Act (Matter of M-S-H-, 8 I. & N. Dec. 460). The instant petition is clearly an effort to bring the beneficiary to the United States in a nonimmigrant classification to which he is not entitled under the law in order to overcome his inability to obtain an immigrant visa promptly. Under the circumstances, it is concluded that the decision of the District Director was proper and that his decision must be affirmed.

ORDER: It is ordered that the decision of the District Director to deny the petition be and the same is hereby affirmed.

MATTER OF TAMURA

In SECTION 248 Proceedings

A-13293187

Decided by Regional Commissioner July 15, 1964

Since a nonimmigrant alien who is employed as a chief cook, supervising 3 to 4 subordinates in the preparation of Japanese fried food specialties and performing the duties of the main kitchen chef in the latter's absence, is employed in a "responsible capacity" within the meaning of 22 CFR 41.41, he is eligible for a change of nonimmigrant status under section 248, Immigration and Nationality Act, as amended, to that of an employee of a treaty investor under section 101 (a) (15) (E) (ii) of the Act.

This matter is before the Regional Commissioner on appeal from the denial of the application for change of nonimmigrant status.

The applicant is a married Japanese subject, born August 31, 1930 at Baguio, Philippines. He was admitted to the United States at Honolulu, Hawaii on November 22, 1962 under section 101 (a) (15) (H) (i) of the Immigration and Nationality Act on the basis of a petition filed by Saito Restaurant, Inc., a well-known Japanese eating establishment in New York City. He was authorized to remain until November 21, 1963. On October 10, 1963 he applied for change of nonimmigrant status to that of a treaty investor under section 101 (a) (15) (E) (ii) of the Act.

The Saito Restaurant, which has recently moved to a new location, represents an investment of approximately one million dollars. Its owners, Mrs. Moto Saito and her son, Tokio Saito, are Japanese Nationals who are presently maintaining E-2 status. The applicant is in their employ as a chief cook, supervising three to four others in the preparation of Japanese fried food specialties. He earns $103 a week and is provided with meals and living quarters. In denying his application for change of nonimmigrant status, the District Director found that the applicant is ineligible for classification as a treaty investor because he has no financial interest in the restaurant.

Section 101 (a) (15) (E) (ii) of the Immigration and Nationality Act defines a treaty investor as an alien entitled to enter the United States

under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him, solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital. The applicable regulation (22 CFR 41.41) further provides as follows:

§ 41.41 Treaty investors.

(a) An alien shall be classifiable as a nonimmigrant treaty investor if he establishes to the satisfaction of the consular officer that he qualifies under the provisions of section 101 (a) (15) (E) (ii) of the Act and that: (1) He intends to depart from the United States upon the termination of his status; and (2) He is an alien who has invested or is investing capital in a bona fide enterprise and is not seeking to proceed to the United States in connection with the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living; or that (3) He is employed by a treaty investor in a responsible capacity and the employer is a foreign person or organization of the same nationality as the applicant.

A Treaty of Friendship, Commerce and Navigation exists between the United States and Japan. Article VIII of this treaty states, in part, that 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. Matter of Kobayashi and Doi, Interim Decision #1313.

The applicant herein is engaged as chief cook by Japanese nationals who have invested substantial sums of money in establishing a restaurant known for its excellent Japanese cuisine. He was brought to the United States by his employers because of his skill in the preparation of Japanese dishes. He is not only charged with the responsibility of supervising several subordinate cooks in preparing fried food specialties but also performs the duties of the main kitchen chef in the latter's absence. In contradistinction to the restaurant service personnel discussed in Matter of Kobayashi and Doi, supra, we find that the instant applicant is employed in a "responsible capacity” within the meaning of 22 CFR 41.41 and additionally, may be considered to be a "specialist" within the contemplation of Article VIII of the aforementioned treaty between the United States and Japan. Accordingly, the appeal will be sustained.

It is ordered that the decision of the District Director be reversed and that the application for change of nonimmigrant status be granted.

MATTER OF GAGLIOTI

In DEPORTATION Proceedings

A-5064270

Decided by Board September 11, 1964

Conviction of conspiracy to commit an unlawful act (establish gambling games) in violation of 18 Pennsylvania Statutes 4302 is not a conviction of a crime involving moral turpitude.

CHARGES:

Order: Act of 1952-Section 241(a)(4) [8 U.S.C. 1251(a)(4) (1958)]—Convicted of two crimes after entry-conspiracy to violate Internal Revenue Laws; conspiracy to establish gaming devices.

This is an appeal by the trial attorney from the order of the special inquiry officer terminating proceedings. The sole question presented on this appeal is whether respondent's conviction for conspiracy to establish gaming devices involves moral turpitude. We agree with the special inquiry officer that moral turpitude is not involved and will dismiss the appeal.

Respondent, a 60-year-old married male, a native and citizen of Italy, last entered the United States in 1921. The gaming conviction in question occurred on January 16, 1941, when he was convicted of conspiracy in the Court of Quarter Sessions for Delaware County, Pennsylvania under 18 P.S. 43021 for "unlawfully, falsely, fraudulently, wilfully and maliciously" conspiring to "commit an unlawful act." The specifications of the unlawful act are in brief: to establish gambling games, to permit people to collect for the purpose of gambling, to solicit people to visit the gambling room, and to exhibit gaming devices.

'18 P.S. 4302. Conspiracy to do unlawful act. Any two or more persons who falsely and maliciously conspire and agree to cheat and defraud any person of his moneys, goods, chattels, or other property, or do any other dishonest, malicious, or unlawful act to the prejudice of another, are guilty of conspiracy, a misdemeanor, and on conviction, shall be sentenced to pay a fine not exceeding five hundred dollars ($500), or to undergo imprisonment, by separate or solitary confinement at labor or by simple imprisonment, not exceeding two (2) years, or both. 1939, June 24, P.L. 872, Section 302.