Interim Decision .#1835

Interim Decision .#1835

MAIVIGR of SONZGAWA

In Visa Petition Proceedings

A-14616469

Decided by Regional Commissioner August 14, 1967

Approval of a visa petition filed by the owner and proprietress of a custom dress

and boutique shop to accord beneficiary preference classification under section

203(a) (6) of the Immigration and Nationality Act, as amended, as an assistant

clothes designer, is not precluded by the fact that petitioner's net profit for

the previous year is not commensurate with the salary specifications of the

labor certification where it is found that petitioner's business has increased ;

that her expectations of continued increase in business and profits are res.

sonable expectations; and it has been establighed that she has the ability to

meet the wages stipulated in the labor certification.

ON BEHALF or PzwgzIONER: Sidney M. Kaplan, Esquire

Room 818

756 South Broadway

Los Angeles, California 90014

Discussion: This case comes forward on appeal from the decision

of the District Director, Los Angeles who denied the petition on May

31, 1987 in that it had not been established that the petitioner could

meet the wage requirements of the position certified by the Secretary

of Labor.

Oral argument was requested and granted. Petitioner appeared

with counsel as scheduled.

The petitioner is the owner and proprietor of a fashionable "custom

dress and boutique" shop in Pasadena, California, specializing in

women clothes of oriental fabric and design. The shop was established in 1956 and does an annual gross business of about $100,000. In

addition to the petitioner, there are four regular employees and from

one to four part-time employees. Petitioner has been doing her own

designing and creations and now seeks the services of the beneficiary

as an "assistant designer for oriental arts". Form ES-575B, "Job

Offer for Alien Employment", describes the duties of the position as

follows: "Has to be able to do embroidery, beading, speeial handwork,

designing, pattern work cutting, fitting, and finishing. She will be

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working in an air conditioned shop, working with modern equipment,

and in nice surroundings." The education and training requirements

for the position are described as, "She has to have at least five years

experience in dress designing, pattern making, and cutting. Must also

be able to do embroidery and fitting." The salary offered is $3.00 an

hour for a 40 hour week.

The certification required by section 212(a) (14) of the Immigration and Nationality Act, as amended, as to the availability of like

labor in the United States has been issued by the Department of Labor,

which titled the poition certified as "clothes designer" with a code

142.081.

The beneficiary is a 35-year-old single female, a native and citizen of

Japan. She was admitted to the United States at Honolulu, Hawaii

as a visitor for business on February 6, 1965 as a representative of

a Japanese import firm to research United States markets for products attractive to Japanese business. She subsequently applied for a

change of nonimmigrant status to that of a student which was denied

and beneficiary returned to Japan in September 1966.

Evidence presented shows that the beneficiary graduated from high

school in Japan in 1951 and that she attended the Musashino Dress

Making Women's College in Tokyo from October 1955 to September

1957 completing a course in professional techniques of dress making,

cutting and embroidery and also fitting, and was awarded a graduation diploma on March 31, 1958. On March 31, 1957 she was awarded a

certificate of merit for outstanding work by the school. She also presented a certificate showing completion of a "designers course" from

the Dress Makers Women's College, Tokyo on March 30, 1959 and a

diploma showing completion of a two-year course in oriental interior

design from Nippon Design College in Tokyo on March 25, 1964. She

was issued an instructor's license in dress making on March 28, 1959 by

the Japanese Department of Labor in Tokyo.

From 1957 to March 1962 she was a part-time instructor in. dress

making at the Pair Dress in Tokyo, from April 1959 to August 1962

she was also employed by Shinobu Dress Making in Tokyo as chief

designer where she was employed in designing, cutting and fitting

custom made clothes. From September 1962 to January 1965 she was

employed by K. K. Esu in Tokyo as a consulting executive designer

for ready made manufactured clothes. Here she did original designing

and pattern making and worked as a supervisor and trainer of other

employees. From the evidence submitted it is well established that the

beneficiary is qualified for performance of the duties of the position.

Section 203(a) (6) of the Immigration and Nationality Act, as

amended, provides for the availability of visas to qualified immigrants

,

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who are capable of performing skilled or unskilled labor, not of a

temporary or seasonal nature, for which a shortage of employable amd

willing persons exist in the United. States.

Section 204(a) of the Act provides that any person desiring and

intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203(a) (6) may file

a petition with the Attorney General for such classification.

The term "desiring and intending to employ" contemplates not only

the physical facilities to utilize such services but the financial ability

to meet the wage requirements of the certified job offer.

The District Director in his denial order stated :

Tour 1906 income tax return indicates a net business profit of $280. In your

application to the Secretary of Labor for the certification required by section

212 (a) (14) you alleged that the beneficiary will be employed eight hours per day,

40 hours per week, at a salary of $3.00 per hour. Ton will then be obliged to

pay the beneficiary a yearly wage of $6,240 which is considerably in excess of

the net profit for 1986.

Petitioner has been in business in a competitive field for over 11

years. There is no evidence that she will not continue in business for

many more years. The fact that she is seeking the services of an oriental clothes designer is in itself evidence that she plans to continue in

the business. Petitioner has been making a living for herself and

employing from four to eight employees without any evidence of financial difficulties. She has admitted that 1966 was not a good year. In

that year petitioner changed to a better location, and for five months

paid double rent; on her old place and on her new place. There were

large moving costs and also a period of time when she was unable to-

do regular business. She has presented a financial statement prepared

by an accounting firm in Pasadena date& May 31, 1967 which shows•

that the petitioner from January 1, 196/ to May 31, 1967 has made a

net profit of $4,774. Petitioner states that with the addition of an

authentic oriental designer from Japan she will substantially increase

her business not only in the actual number of clients but also to the

type of customer who is willing to pay a higher price for authentic

Japanese designs and patterns. The petitioner's shop is well recognized in Pasadena. The dress shop was the subject of a news article

in a fashion magazine which stated in part :

It's exciting to discover a new designer, and if you've never driven to 606

Colorado Blvd. in Pasadena, you have a treat in store. This is the headquarters

of Sow Kaneko, couturiere designer, master craftsman, and good friend of her

hundreds of patrons.

How Kaneko began her fashion career doing free lance designing for Saks

Fifth Avenue, Marshall Fields and Bullock's Wilshire, but now devotes herself

exclusively to her custom stndio in Pasadena. She uses the Oriental concept

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of Shibui as the theme of all her designs. Shibui is a Japanese word with nuances

of meaning . . . lovely, understated, beautiful . . . and, certainly, these adjectives apply to her work.

On appeal petitioner presented her income tax returns for 1966

showing that she paid over $19,000 in wages to four regular employees

and four part-time employees. She presented evidence in the form of a

scrapbook showing that she is well known for her designs and fashions

and outstanding in her field. Time and Look magazines have published

full colored pages of her creations as has the Fashion Service Review as

well as numerous other fashion magazines. Petitioner has made most of

the gowns for the Miss Universe of the Long Beach beauty pageant. She

has as clients movie actresses and society matrons. Her clients have

been inoluded in the lists of the best dressed California women. Petitioner makes numerous .appearances at design and fashion shows

throughout the United States lecturing on fabric, design and techniques. She also lectures at colleges and universities in California and

at home economic institutes on these subjects. She received fees for the

appearances which are not included in the income of her store. Her

reputation as a fashion designer and couturiere makes her in demand.

Petitioner states that because she must on occasion be away from her

business, she is in urgent need of the services of the beneficiary. Her

business has increased at the new location and she is unable to keep up

with the demands of the work.

The fact that petitioner was able to show only a net profit of $280

for the calendar year of 1966 does not in itself preclude the beneficiary

from establishing that she will be able to meet the conditions of the

certification in the "Job Offer". After careful consIderation of all the

above circumstances, we find that the petitioner,' S expectations of continued increase in business and increasing profits are reasonable

expectations and that it has been established that she has the ability

to pay the beneficiary the stipulated wages and meet the conditions

of the certification. We find that the beneficiary is eligible for the

classification sought. The appeal will be sustained and the petition

granted.

ORDER: It is ordered that the appeal be sustained and the petition granted.

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