UDGAWA

Interim Decision #2262

MATTER OF UDAGAWA

In Exclusion Proceedings

A-20300772

Decided by Board February 13, 1974

Applicant, who will supervise and train American workers as tempura cooks at a

Japanese restaurant and will assist in the preparation of meals during the

training period, is inadmissible as an employee of a treaty investor under

section 101(aX15XEXii) of the Immigration and Nationality Act, since he will

not be employed in a "responsible capacity" within the meaning of 22 CFR

41.41. [Matter of Tamura, 10 I. & N. Dec. 717 (Reg. Corn. 1964), overruled]

ON BEHALF OF APPLICANT: William J. Lawler, Esquire

615 Montgomery Street

San Francisco, California 94111

EXCLUDABLE: Act of 1952—Section 212(a)(20) 1182(a)(20)]—Immigrant

not in possession of immigrant visa.

The alien applicant is a native and citizen of Japan who arrived

at San Francisco, California on April 17,'1973, and sought admis-

sion as a nonimmigrant treaty investor. He was denied admission

and an exclusion hearing was held on April 20, 1973, at which time

the immigration judge found the applicant excludable under sec-

tion 212(a)(20) of the Immigration and Nationality Act. The ap-

plicant has appealed that decision. The appeal will be dismissed.

Upon his arrival in the United States the applicant was in

possession of a Japanese passport and a nonimmigrant treaty

investor visa apparently issued by a United States consular offi-

cial in Japan. At his hearing it was established that the applicant

is a cook or chef specializing in the preparation of Japanese tem-

pura meals. He is in the employ of a Japanese corporation which,

through various corporate holdings, is the sole owner of a

Japanese restaurant in San Francisco where the applicant had

expected to work.

The applicant appears to have had at least one full year of

schooling and two years' practical experience as a cook. During

the last six months of his work experience in Japan he had

specialized as a tempura chef and had supervised the activities of

several other cooks. The applicant had been expected to remain in

the United States for as long as two years, during which time he

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interim Decision gEzzoz

was to supervise and train American workers as tempura cooks

and was to assist in the preparation of meals at the restaurant. He

was due to replace another tempura chef at the San Francisco

restaurant, who evidently had had a similar assignment. An ex-

ecutive with the applicant's employer maintains that the

applicant's presence here is necessary to insure the quality of the

Japanese meals which are served at the restaurant until compe-

tent American help can be trained. This also appears to have been

the function of the applicant's predecessor at the restaurant. The

corporation's failure in its attempt to acquire adequate American

help appears to have stemmed from an unwillingness on the part

of successful trainees to remain at the job. Tempura cooking, it

appears, requires greater effort than other cooking jobs with com-

parable pay.

The applicant seeks admission as a nonimmigrant treaty inves-

tor. Section 101(a)(15)(EXii) of the 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:

(ii) 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 applicant has indicated that he has no funds or other

property invested in any of the interrelated corporations involved

in this matter. The corporation which employs him is the investor

in this case, and for section 101(aX15)(E)(ii) to have any real

meaning in a world dominated by corporate entities, it must be

construed in a manner which would permit appropriate agents of

a corporation to obtain this nonimmigrant status. Consequently, it

would be appropriate to admit this applicant as a nonimmigrant

treaty investor, if he qualifies as an individual who intends "solely

to develop and direct" the operations of the enterprise.

At present the regulations of the Immigration and Naturaliza-

tion Service do not confront the question of who may qualify for

treaty investor status. It appears, however, that a reasonable

construction of section 101(aX15)(EXii) is contained in 22 CFR

41.41. The relevant portion of this Department of State regulation

states:

(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)(15XE)(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

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Interim Decision #2262

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.

While this regulation could be subject to varying interpretations,

we construe it to mean that an alien such as the applicant will

qualify as a "treaty investor" if he has the necessary intent to

depart and if he meets the conditions imposed by subdivision (3) of

the quoted portion of the regulation. Since the evidence adduced

at the hearing indicates that the applicant possesses the requisite

intent to return to Japan, the remaining issue in this case is

whether he can be considered to be "employed . in a responsible

capacity. ..."

The notes to 22 CFR 41.41, contained in the Department of State

Foreign Affairs Manual, elaborate upon the regulation. The note

which evidently relates to employment in a responsible capacity

reads:

Highly trained technical and managerial personnel employed by firms having

the nationality of a country which has entered into a treaty with the United

States providing for the investor classification are entitled to treaty investor

status if:

(a) they are employed in a managerial capacity, or

(b) they are highly trained and specially qualified technical personnel

required in the United States for one of the following purposes:

(1) establishment of the enterprise,

(2) training or supervision of technicians employed in manufacturing,

maintenance and repair functions, or

(3) the continuous development of product improvement and quality con-

troL

Section 101(aX15XEXii) of the Immigration and Nationality Act,

the State Department regulation (22 CFR 41.41), and the accompa-

nying notes must all be construed within the framework, and in

keeping with the concepts, of the Act.

In section 212(a)(14) of the Act Congress has evinced a desire to

protect American labor from excessive job competition which

might be generated by the presence in the United States of

numerous skilled and unskilled alien laborers. Nevertheless, aliens

who do not desire immigrant status, and who may be needed to

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Interim Decision #2262

perform temporary services or labor in the United States, are

potentially eligible for admission as nonimmigrants under section

101(aX15XH).1 Similarly, section 101(a)(15)(L) provides a basis for

the admission, as nonimmigrants, of intracompany transferees

who are to render services involving specialized knowledge?

Whether the applicant could qualify as a nonimmigrant under

either of these provisions is not before us; however, the existence

of this statutory scheme convinces us that Congress did not intend

that skilled alien laborers or aliens occupying minor managerial

posts should be eligible for treaty investor status. These job

positions can be readily held by American workers without placing

in jeopardy a United States investment made by a foreign firm.

Although it would seem appropriate under certain circumstances

for a foreign corporation temporarily to utilize the services of

skilled alien workers, the jobs in which they would ordinarily be

employed are not of such significance to the actual investor that

treaty investor status should be accorded to these individuals.

Skilled alien employees should be required to enter in a nonimmi-

grant status that will afford some measure of protection to

American labor.3

The applicant is concededly an individual with a fair degree of

specialized training who would be expected to function in a modest

supervisory role. However, his proposed position at the restaurant

also entails duties characteristic of skilled laborers, and the job is

The regulation governing section 101(a)(15)(H) nominmigrants is 8 CFR

214.2(h). Pursuant to section 214(c) the regulation requires the approval of a visa

petition for all aliens in this category. For an alien destined to perform

temporary services or labor, it also requires labor certification or other evidence

tending to insure that American workers would not be adversely affected by the

alien's admission. The petitioner need not be a resident of the United States.

2 The regulation applicable to section 101(a)(15)(L) also requires the alien

applicant to be the beneficiary of an approved visa petition and permits the

petitioner to be a nonresident. There is no labor certification requirement for

this nonimmigrant category. However, the petitioner is required to submit a

statement detailing the beneficiary's proposed function in the United States. 8

CFR 214.2(1).

3 There is an additional factor to consider. Section 101(a)(15)(E) does not limit a

treaty investor to a temporary stay, whereas, both section 101(aX15)(H) and

section 101(aX15)(L) do contemplate only a temporary visit for a nonimmigrant

in either category. The Immigration and Naturalization Service regulations

governing these three nonimmigrant classifications speak in terms of a tempo-

rary admission. 8 CFR 214.2(e); 8 CFR 214.2(h)(7), (9) and (11); 8 CFR 214.2(1)(3).

Nevertheless, the statute may be designed to allow a treaty investor an

indefinite stay. Compare S. Rep. No. 1515, 81st Cong., 2d Sess. 563 (1950), with

1952 U.S. Code Cong. & Ad. News 1697. We have serious doubts concerning the

admission of this applicant in a status which potentially could result in a

limitless visit to the United States.

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admittedly one which is ultimately expected to be held by an

American worker. The position is not of such a substantial nature

that it warrants the indefinite utilization of foreign labor.

The employment of aliens in this type of position cannot be

characterized as designed solely for the development and direction

of the investment. Rather, the continued use of foreign workers

may function as a means of securing adequate help at less than

the prevailing United States wage standards for jobs of compara-

ble complexity. There is substantial evidence in the record to

indicate that the applicant's employment in the United States was

not required because of a shortage of qualified United State chefs,

but because of the restaurant corporation's unwillingness ade-

quately to compensate those available American workers.

Although it has not been clearly established that the applicant's

employer desires to continue importing foreign labor, we are

unable to hold that the applicant will be employed in a responsible

capacity within the meaning of 22 CFR 41.41, or that he qualifies

within the purview of the notes of the Foreign Affairs Manual. His

abilities more resemble those of a skilled laborer than those of one

who will develop and direct an enterprise. If he is to be admitted it

must be via a category which would not utterly circumvent the

congressional policy of protecting American labor from undesira-

ble job competition.

In exclusion proceedings the applicant has the burden of proof

to establish that he qualifies for admission under the claimed

status. Section 291, Iinmigration and Nationality Act. We find that

the applicant has not shown that he is employed in a responsible

capacity, and therefore that he has not demonstrated his entitle-

ment to admission as a nonimmigrant treaty investor. Since the

applicant has failed to establish that he is entitled to nonimmi-

grant status, he is presumed, under section 214(b) of the Act, to be

an immigrant. He is thus excludable under section 212(aX20) as an

immigrant not in possession of an immigrant visa or other appro-

priate documentation.

Finally, the approach we have adopted in this case is consistent

with the result in Matter of Kobayashi and Doi, 10 L & N. Dec. 425

(Deputy Assoc. Commr. 1963). We recognize that our decision is in

apparent conflict with Matter of Tamura, 10 L & N. Dec. 717 (Reg.

Com. 1964); however, we are not bound by Regional Commissioners'

rulings.

ORDER: The appeal is dismissed.

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