a tempura chef, with no personal funds invested, not entitled to treaty investor status.
How later courts described this case
- a tempura chef, with no personal funds invested, not entitled to treaty investor status.
- review limited to determining whether agency applied the proper legal standard
- optometrist's income primarily from labor, so not a treaty investor
Written by the judges who cited it.
The opinion
TANG, Circuit Judge,
dissenting.
I dissent respectfully.
For the purposes of avoiding the labor certification requirement, Cheung falls within the plain meaning of the regulation, 8 C.F.R. § 212.8 (b)(4) (1974):
(4) An alien who establishes on Form I-526 that he is seeking to enter the United States for the purpose of engaging in a commercial or agricultural enterprise in which he has invested, or is actively in the process of investing, capital totaling at least $10,000, and who establishes that he has had at least 1 year’s experience or training qualifying him to engage in such enterprise . ..
Although the INS interprets this regulation to exclude professionals, deference need not be given to an agency construction that is clearly “contrary to the plain and sensible meaning of the regulation.” Ruangswang v. INS, 591 F.2d 39, 43 (9th Cir. 1978). The district court reasoned, and I agree, that since professionals were not singled out as excluded from the alien investor exception, they are of necessity included.
Further, the majority implies that this regulation should be construed to exclude professionals because to do otherwise would render it violative of the statute. I do not find this rationale persuasive. The purpose of the labor certification requirement is to avoid the reduction of job opportunities. See H.R.Rep. No. 1365, 82d Cong.2d Sess. (cited in the majority’s opinion). In the instant case, however, the record shows that Cheung would in fact be increasing job opportunities by employing two to three auxiliary persons. Therefore, I see nothing in the statute itself which would compel the construction adopted by the majority.
Finally, the majority expresses the apprehension that if professionals may qualify as investors, this would result in the “abandonment of labor certification for every *671 professional wealthy enough to establish his own practice.” This, however, would not be the ease. Like other investors, professionals, under the new regulation, have to make an investment of at least $40,000 and this investment must tend to expand job opportunities enough to offset the adverse impact of the alien’s employment. Given these stringent requirements which are necessary in order to meet the investor exception to the labor certification requirements, I do not understand the need to discriminate against professionals by treating them differently from other investors.