DAMIOLI

Interim Decision #2774

MATTER OF DAMIOLI

In Section 248 Proceedings

. A-22622403

Decided by the Commissioner January 18, 1980

Native born United States citizen who is a dual national of the United States and Italy by

marriage and operation of foreign law is statutorily ineligible to confer treaty trader

status on alien beneficiary employed by her firm where she has chosen to assert her

United States citizenship as the predominant nationality by various actions taken to

benefit the conduct of her business.

ON BEHALF OF PETITIONER: Stanley Mailman, Esquire

1290 Avenue of the Americas

New York, New York 10019

This matter is before the Commissioner on certification, as provided

by 8 C.F.R. 103.4, for review of the Regional Commissioner's order

sustaining the District Director's decision to deny the application for

change of nonimmigrant status.

The applicant is a 27-year-old native and citizen of Italy who entered

the United States on July 15, 1978, as a visitor for pleasure authorized

to remain until September 30, 1978. On September 25, 1978, the appli,

cant submitted an application for change of nonimmigrant classifica-

tion to that of treaty investor. This classification was sought to enable

the applicant to assume duties as director and manager of a United

States enterprise in the Virgin Islands which charters vessels used for

fishing, scuba diving, tours and other water sports and activities. This

enterprise, which is incorporated under United States law, is wholly-

owned by an. individual who is a native-born United States citizen, and

who also claims to be a citizen of Italy through marriage and operation

of Italian law.

The application for change of nonimmigrant classification to treaty

investor was approved by the District Director on September 29, 1978.

Shortly after the approval, however, the District Director determined

that the applicant was not in fact eligible for treaty investor status

because the owner of the enterprise was a United States citizen, and

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that the approval was therefore in error. On the same day, the appli-

cant was requested to return to the Immigration and Naturalization

Service office at which time the adjudicating officer voided the ap-

proval by obliterating his previous endorsements of the applicant's

application, arrival/departure record, and passport. The applicant was

informed that the case would be reviewed further before final

disposition.

On October 3, 1978, a notice of denial was apparently issued by the

District Director and mailed to the applicant through the Attorney of

Record. Though this denial is referred to by both the applicant and the

District Director, it does not appear in the record. There does appear in

the record a denial dated November 2, 1978, in which the District

Director sets forth two reasons for denying the application:

1. That the applicant could not qualify as a treaty investdr under section

101(a)(15)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(E)(ii),

as amended, because he had neither invested nor was in the process of investing any

capital in the subject enterprise; and

2. That the applicant could not qualify for treaty investor status under 22 C.F.R.

41.41 as an employee of an organization which is principally owned by a person having

the nationality of the treaty country, because the owner of the involved enterprise is a

United States citizen.

On November 9, 1978, the District Director moved for reconsidera-

tion of his earlier approval in view of his subsequent finding that the

applicant was ineligible for treaty investor status. For basically the

same reasons as identified in his denial of November 2, 1978, the

District Director ordered that the case be reopened, that the approval

of September 29, 1978, be rescinded, and that the denial of October 3,

1978, be held in abeyance pending submission of countervailing

evidence by the applicant as to why such denial should not stand. In

response, the applicant argued that the District Director's motion was

procedurally and substantively defective because, among other things,

the District Director cannot be considered "an affected party" under 8

C.F.R. 103.5, and because the motion set forth no new evidence estab-

lishing the applicant's ineligibility for treaty investor status. On

December 11, 1978, the District Director denied the application and

certified the case to the Regional Commissioner for review.

The applicant appealed the District Director's October 3, 1978, de-

nial to the Regional Commissioner on November 13, 1978, arguing that

there is no provision under section 248 of the Immigration and Nation-

ality Act, 8 U.S.C. 1258, to rescind an approved change of nonim-

migrant classification, and that he was in any event eligible for treaty

investor status on the ,basis of hio employment by an organization

which is principally owned by a person having the same nationality of

the treaty country. On January 29, 1979, the Regional Commissioner

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dismissed the applicant's appeal, ruling that 8 C.F.R. 103.5 does give

the District Director the authority to reopen and reconsider his deci-

sion, and that the certification of the case to the Regional Commission-

er served to remedy any procedural defects which may have occurred

at the district level. The Regional Commissioner further ruled that

because the owner of the subject enterprise failed to satisfactorily

establish that she was an Italian national, the applicant was ineligible

for treaty investor statue as her employee.

This case appears to be one of first impression. The controlling lime

to be resolved is whether a United States citizen at birth who later

acquired Italian nationality through marriage and the operation of

Italian law, and who has invested in a United States enterprise, is

eligible to confer treaty investor status upon an alien employee of such

enterprise under the Immigration and Nationality Act, as amended.

The resolution of this issue must begin with an analysis of the statute

and pertinent regulations.

The requirements for qualifying for treaty investor status are clear-

ly net forth in 22 C.F.R. 41.41. Among other things, the regulation

provides that an alien may establish such status if "... he is employed

by ... an organization which is principally owned by a person ... hav-

ing the nationality of the treaty country...." While the evidence of

record is not conclusive, I am satisfied that the investor here is an

Italian national by operation of Italian law. This case does not, how-

ever, turn on the Italian nationality of the owner of the enterprise. Her

dual Italian nationality does not, standing alone, make the applicant

here eligible for the status of a treaty investor under 22 C.F.R.

41.41(a)(3).

A treaty investor is defined as:

... an alien entitled to enter the United States under and in pursuance of the provi-

sions of a treaty of commerce and navigation between the United States and the

foreign state of which he is a national ... solely to develop and direct the operations of

an enterprise in which he has invested... a substantial amount of eaptial;

Section 101(a)(15)(E) Immigration and Nationality Act, 8 U.S.C.

1101 (a)(15)(E), as amended. (Emphasis added.) This statutory require-

ment of alienage is further articulated in 22 C.F.R. 41.3, which specifi-

cally prohibits the issuance of visas to nationals of the United. States,

which includes citizens. The record, hOwever, contains clear and un-

controverted evidence that the employer here is not an alien, but

rather a native born United States citizen. Nor is there any evidence or

-

assertion in the record that she has voluntarily relinquished or

otherwise lost her United States citizenship. As such, she would not be

entitled to enter the United States as an alien, as required by the

statute, but rather as a United States citizen. As a United States

citizen, she is therefore statutorily ineligible for treaty investor status.

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Because she cannot qualify as a treaty investor, the applicant here

cannot qualify as a treaty investor as her employee under 22 C.F.R.

41.41(a)(3).

The applicant argues that his prospective employer's dual Italian

nationality qualifies him for treaty investor status, notwithstanding

her United States citizenship. He attempts to expand this country's

recognition of the principle of dual nationality to the point where he

would compel the United States to at once treat the Italian citizenship

of his employer with an equal degree of legal and political force as it

does her United States citizenship. This position, however, is not

Supported by authority or logic. The cases the applicant cites on this

point relate to the loss of United States citizenship and the tax liabili-

ties of dual nationals—neither of which issue is relevant to this case.

On the other hand, there is ample authority which holds the contrary

position. For example, Hyde, in his treatise International Law, at

p. 1131, states that:

Two States may in fact lay claim to the same individual as a national at the same time.

This circumstance does not, however, place the claimants on an equal footing. The

equities of one are of necessity superior to those of the other. They cannot at the same

*oment be on the same plane. (Emphasis supplied.)

The legal and Political predominance of the owner's United States

Citizenship here is clear. In fact, it is by her own affirmative actions to

invoke her United States citizenship to establish and maintain her

Wiliness enterprise in this country that the predominance of such

citizenship is evident. In order to obtain Certificates of Registry from

the United States Coast Guard necessary for her wholly-owned enter-

prise to ply United States coastal waters, the enterprise was required

to be at least 75% owned by United States citizens. Additionally,

continuing permission from the Coast Guard to ply United States

Waters under the Certificates of Registry will continue only as long as

76% of the enterprise is owned by United States citizens. Thus, the

owner of the enterprise held herself out as a United States citizen

when she sought and was granted Certificates of Registry issued under

the jurisdiction of the United States Coast Guard. Moreover, she is

continuing to hold herself out as a United States citizen in order to

keep her Certificates of Registry in force. Clearly, then, the owner has

elected to have the United States recognize her United States citizen-

ship as predominant. Had she sought such recognition of her Italian

citizenship, her enterprise would not have been issued the necessary

'ertificate of Registry by the United States Coast Guard and would not

have been allowed to ply its trade in United States waters. In other

words, the very existence of the business upon which the applicant

seeks treaty investor status would not be possible unless its owner

were a citizen of the United States.

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The applicant nonetheless contends that the United States should

give equal recognition to his employer's Italian Citizenship in order

that he may receive treaty investor status as her employee under 22

41.41(3). To do so would allow a situation in which she would be

able to secure benefits from one Government agency by claiming to be

a United States citizen, and simultaneously secure other benefits from

a second Government agency by claiming to be an Italian citizen. The

owner's dual nationalities, however, are not interchangeable at will

depending upon the relative Government benefits she may be granted

or denied by claiming one or the other. As indicated above one of the

two nationalities must predominate. Here the affirmative actions of

the owner herself establish the predominance of her United States

citizenship.

The only remaining issue to be disposed of is what effect, if any, the

District Director's approval and subsequent denial of the application

on September 29, 1978, has on the outcome of the case. The District

Director has the authority tinder 8 C.F.R. 103.5 to reconsider his

completed actions. There is no question that the manner by which the

District Director rescinded the approval of the instant application was

procedurally defective. The only consequence of such defect to the

applicant, however, was that he did not receive a benefit for which he

was statutorily ineligible. In any event, he was granted a subsequent

opportunity by the District Director to submit countervailing

evidence. This overcomes the earlier procedural defect in this case and

renders it harmless error, and no ground for reversal of the District

Director's decision.

ORDERS The District Director's decision of December 11, 1978, be

affirmed, and the application for change of nonimmigrant classifica-

tion is hereby denied.

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