AMORNVOOTISKUL

Interim Decision #3009

MATTER OF AM

ORNVOOTISKUL

In Deportation Proceedings

A-22450984

A-22450985

Decided by Board April 1, 1986

(1) Under the pertinent provisions of section 19 of the Immigration and Nationality

Act Amendments of 1981, Pub. L. No- 97-116, 95 Stat. 1611 [codified at 8 U.S.C.

§ 1151 (1982)], an alien is not subject to the numerical limitations of the Act if he

was present in the United States on or before June 1, 1978, and was qualified as a

noninefereuce immigrant under section 208(a)(8) of the Act, 8 U.S.C. §1153(1)(8)

(1982); was exempt from the labor certification requirement of section 212(aX14) of

the Act, 8 U.S.C. § 1182(aX14) (1982), as a qualified investor; and properly filed an

application for adjustment of status to that of an alien lawfully admitted for per-

lemma residence, which is still pending.

(2) Section 19 of the 1981 Amendments to the Act has been interpreted by the Immi-

gration and Naturalization Service in its regulations to mean that an application

for adjustment of status may be approved after June 1, 1978, provided that the

applicant has a priority date on or before June 1, 1978, and meets the other re-

quirements of section 19.

CHARGE:

Order. Act of 1952—Sec. 241(aX2) [8 U.S.C. § 1251(aX2)]--Nonimmigrants—re-

mained longer than permitted

ON BEHALF OF RESPONDENT& ON BEHALF OF SERVICE:

Robert S. Bixby, Esquire Leonard A. Rosenberg

Fallon, Bixby, McVey & Cheng Assistant District Counsel

30 Hotaling Place

San Francisco, California 94111

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members

This case was last before us on February 13, 1980, when we sus-

tained the respondents' appeal from the immigration judge's April

24, 1979, denial of their application for adjustment of status and re-

manded the record to the immigration judge for reconsideration of

their application for adjustment relief. On August 10, 1984, the im-

migration judge found the respondents eligible for adjustment

relief and granted their application as a matter of discretion. The

Interim Decision #3009

Immigration and Naturalization Service appealed. 1 The immigra-

tion judge's decision will be affirmed.

The pertinent facts relating to the merits of the investment were

fully discussed in the immigration judge's August 10, 1984, deci-

sion. For purposes of clarity we will only discuss the facts that di-

rectly relate to the issues raised on appeal.

The respondents, a married couple, are natives and citizens of

Thailand. The male respondent is 37 years old, and the female re-

spondent is 38 years old. The male respondent was admitted to the

United States on or about February 12, 1969, as a nonimmigrant

student. Including extensions, he was authorized to remain in the

United States until February 16, 1976. The female respondent was

admitted on or about November 25, 1973, as a nonimmigrant stu-

dent authorized to remain until November 24, 1974. On June 30,

1976, the respondents applied to an Immigration and Naturaliza-

tion Service district director for adjustment of status to that of per-

manent residents under section 245 of the Immigration and Nation-

ality Act, 8 U.S.C. § 1245 (1982). In a decision dated September 1,

1977, the district director denied the application and granted the

respondents the privilege of departing from the United States on or

before September 15, 1977, wiLbout the issuance of Orders to Show

Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form

I-221S). The respondents did not depart, and on November 24,

1978, Orders to Show Cause were issued alleging that they were de-

portable under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2)

(1982), on the ground that they had remained in the United States

longer than permitted. On April 24, 1979, the respondents conceded

deportability as charged and proceeded to renew their application

for adjustment of status pursuant to 8 C.F.R. § 245.2(a)(4) (1986).

In his April 24, 1979, decision the immigration judge found the

respondents deportable as charged. He also concluded that the

female respondent did not qualify for adjustment of status as an

investor as defined in 8 C.F.R_ § 212.8(b) (1979). He therefore con-

cluded that the male respondent's application for adjustment

should also be denied, but only as a matter of discretion, because

his wife was ineligible. Our February 13, 1980, decision disagreed

with the immigration judge's basis for concluding that the female

respondent was ineligible for adjustment of status as an investor.

We therefore remanded the record to the immigration judge for re-

consideration of both respondents' applications for adjustment.

1 In response to the Service appeal, the respondents' counsel has questioned the

timeliness of the appeal. In order to remove any jurisdictional questions, we are con-

sidering this appeal on certification pursuant to S C.F.R. S.1(c) (1956).

Interim Decision #3009

On remand a new immigration judge conducted a hearing on

April 10, 1981, regarding the application for adjustment of status.

At that tune the Service, through its trial attorney, did not indi-

cate opposition to the adjustment application and the hearing was

adjourned. The record contains correspondence between the parties

and the immigration judge, requesting financial information and

referring to a possible application for suspension of deportation.

However, a new trial attorney subsequently entered the case and

expressed his opposition to the adjustment application in a short

memorandum dated February 4, 1983, stating that adjustment

should not be granted because the respondents lacked visa avail-

ability, did not qualify as investors, and were undeserving of ad-

justment relief as a matter of discretion.

On April 7, 1984, the respondents, through counsel, submitted a

brief in support of their application for adjustment of status. On

August 10, 1984, the immigration judge entered a decision granting

the adjustment applications. The immigration judge found that the

respondents' investment met the requirements of 8 C.F.R.

§ 212.8(b)(4) (1984) for an exemption from the labor certification re-

quirement and that they were not precluded from adjustment by

section 2450)(2) of the Act, 8 U.S.C. § 1255(c)(2) (1982). The immi-

gration judge then found that the respondents qualified for visa

availability- under section 19 of the Immigration and Nationality

Act .Amendments of 1981, Pub. L No. 97-116, 95 Stet. 1611 [codi-

fied at 8 U.B.C. § 1151 (1982)1 and granted their applications as a

matter of discretion. The Service subsequently appealed. We now

turn to our discussion of the eligibility issue.

The question of the respondents' eligibility for adjustment of

status as investors turns on the interpretation of section 19 of the

1981 Amendments to the Act, which reads as follows:

Sec. 19. The numerical limitations contained in sections 201 and 202 of the Im-

migration and Nationality Act shall not apply to any alien who is present in the

United States and who, on or before June 1, 1978-

(1) qualified as a nonpreference immigrant under section 203(aX8) of such Act

(as in offoet on June 1, 1978);

(2) was determined to be exempt from the labor certification requirement of sec-

tion 212(aXI4) of such Act because the alien had actually invested, before such

date, capital in an enterprise in the United States of which the alien became a

principal manager and which employed a person or persons (other than the

spouse or children of the alien) who are citizens of the United States or aliens

lawfully admitted for permanent residence; and

(3) applied for adjustment of status to that of an alien lawfully admitted for per-

manent residence.

The relevant segment of section 19 of the 1981 Amendments has

been interpreted by the Service in its regulations at 8 C.F.R.

368

Interim Decision #3009

§ 245.1(cX2)(iv) (1986). See 47 Fed. Reg. 12,129, 12,133, 44,233, 44,237

(1982). It states:

Any applicant will have qualified as a nonpreference immigrant on or before

June 1. 1978 for purposes of this section, if the application for investor status was

actually approved on or before that date, or the application was subsequently ap-

proved with a priority date on or before June 1, 1978. (Emphasis added.)

Under the restrictive interpretation of the statutory language

urged by the district counsel in this case, the respondents would

not qualify for investor status, since no formal determination that

they qualified as investors took place prior to June 1, 1978. The im-

migration judge's eventual conclusion that the respondents quali-

fied for investor status took place on August 10, 1984, pursuant to

our February. 1, 1980, remand order.

We find that the Service interpretation of the statute, found in 8

C.F.R. § 245.1(c)(2)(iv) (1986), is controlling in this case. The regula-

tion specifically contemplates that the application for investor

status may be approved after June 1, 1978. The determinative date

under the regulation is the priority date, and not the date that the

application for investor status is approved. The legislative history

of section 19 of the 1981 Amendments explicitly states that section

19 was intended to provide visa availability to those investor appli-

cants who lost their visa availability while their properly filed in-

vestor application was pending. See IL R. Rep. No. 264, 97th Cong.,

1st Sess. 35, 45, 50, 58 (1981), reprinted in 1981 U.S. Code Cong. &

Ad. News 2577, 2604, 2614, 2619, 2627. Prior to the 1981 Amend-

ments the Service had established a policy, detailed in Operations

Instructions 245.4(aX6), of holding such applications in abeyance

until allocation of a visa was again possible. See Matter of Huang,

16 I&N Dec. 358, 360 (BIA 1977); Matter of Ho, 15 I&N Dec. 692

(BIA 1976); 2 C. Gordon & H. Rosenfield, Immigration Law and

Procedure, § 7.7e(7)(c), at 7-116.6 (rev. ed. 1986). The position taken

by the Service in this case cannot be reconciled with the language

of 8 § 245.1(c)(2Xiv) (1986) and O.I. 245.4(aX6).

The United States Court of Appeals for the Eleventh Circuit in

Kahlenberg v. /NS, 763 F.2d 1346, 1349-51 (11th Cir. 1985), appar-

ently agreed in dictum with the district counsel's interpretation of

section 19 of the 1981 Amendments to the Act. However, in its dis-

cussion of section 19 in Kahlenberg, the Eleventh Circuit specifical-

ly stated that it had accepted this interpretation of section 19 be-

cause it was giving deference to the Service's own interpretation,

since "the promulgating agency's construction of its nwn regula-

tions may be discounted only if clearly unreasonable." Id. at 1351.

It is clear that the court was not aware of 8 C.F.R. §245.1(cX2)(iv)

(1985) when it accepted this interpretation. We therefore now hold

Interim Decision #3009

that our interpretation of section 19 of the 1981 Act is entirely con-

sistent with the Service's interpretation of the statute, found in 8

C.F.R. § 245.1(c)(2) (1986). We find unconvincing the district coun-

sel's argument to the contrary, which cannot be reconciled with the

view of the Service, expressed in its own regulation. There are no

other questions regarding the respondents' eligibility for investor

status. Consequently, we affirm the immigration judge's conclusion

that the respondents qualify as investors with visa availability pur-

suant to section 19 of the 1981 Amendments to the Act. We also

agree with the immigration judge's favorable exercise of discretion.

The adverse factors present in this case are outweighed by the fa-

vorable factors here. See Matter of Khan, 17 I&N Dec. 508 (BIA

1980). Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

370