BUSINESS IMMIGRATION
INTRODUCTION
“Employment;” “Work” & “Unauthorized Employment”
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United States Department of Justice
Board of Immigration Appeals
MATTER OF DUKPA
18 I. & N. Dec. 282
Decided by District Director August 13, 1981
The applicant, a native and citizen of Bhutan, last entered the United States as a visitor for
pleasure on December 6, 1980. He was authorized to remain in the United States until May 5,
1981. He now concurrently seeks permanent resident status under section 245 and classification
as a special immigrant minister as defined by section 101(a)(27)(C)(i) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(27)(C)(i). His application was filed on August 4, 1981.
Section 101(a)(27)(C)(i) of the Act defines a special immigrant as an immigrant who
continuously for at least 2 years immediately preceding the time of his application for admission
to the United States has been a minister of a religious denomination which has a bona fide
organization in the United States, and who seeks to enter the United States solely for the purpose
of carrying on the vocation of a minister of such a religious denomination.
In support of his application, the applicant presented a letter dated June 21, 1981 from the Kagyu
Changchub Chuling (KCC), a center for the practice of Vajrayana Buddhism. In this letter the
applicant's duties and pay were defined. In exchange for his ministerial services of leading
worship services, providing individual counselling, maintaining, and caring for the Buddhist
Alter and coordinating the activities of the center, he would receive room and board and a salary
of $100 per month. The position would involve 35–40 hours per week and travel expenses in
connection with his duties would be provided.
An interview with the applicant on August 4, 1981, and other record material reflect that he
entered Canada in early 1974. He applied for permanent residence in Canada but has not pursued
that application. Since July of 1980, he made three trips to the United States, and on each visit,
he came to the KCC. His stay in the United States since August 10, 1980, was only interrupted
by a two-week visit to Canada. Additionally, it was determined in this interview that the
applicant has been performing those duties as defined by the June 21, 1981 letter from the KCC,
and since August 1980, has been receiving a salary of $100 per month plus room and board.
According to the applicant, he conducts seven services weekly.
Subsequent to his interview, the applicant presented additional evidence in which he hoped to
clarify his relationship to the KCC. The KCC has explained that the remuneration of $100 a
month since July of 1980 has been merely an offering and not a salary. Additionally, other center
members make random donations to the applicant of varying amounts.
The Dictionary of Occupational Titles, 4th Edition, 1977, published by the United States
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Department of Labor, defines clergy member (profess. and kin.), minister, preacher, priest, and
rabbi as:
one who conducts religious worship and performs other spiritual functions associated with
beliefs and practices of religious faith or denomination as authorized, and provides spiritual and
moral guidance and assistance to members: Leads congregation in worship services. Prepares
and delivers sermons and other talks. Interprets doctrine of religion. Instructs people who seek
conversion to faith. Conducts wedding and funeral services. Administers rites or ordinances of
church. Visits sick and shut-ins, and helps poor. Counsels those in spiritual need and comforts
bereaved. Oversees religious education programs, such as Sunday school and youth groups....
The applicant's qualifications as a minister are not suspect. In fact, the record reflects that in
order to reach his Lama title he trained and studied for approximately 29 years. He appears to be
directly responsible to Khenpo Kalu Rinpoche, Head Abbot of Samdup Tarjeechokorling
Monastery, Sonada, West Bengal, India, who placed him first in 1974 in Vancouver, Canada and
subsequently in Portland, Oregon.
Section 245(a) of the Act, 8 U.S.C. 1255(a), reads as follows:
The status of an alien who was inspected and admitted or paroled into the United States may be
adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is filled.
Part (c) of this same section states:
The provisions of this section shall not be applicable to ... an alien (other than an immediate
relative as defined in section 201(b)) ... who hereafter continues in or accepts unauthorized
employment prior to filing an application for adjustment of status;
The record indicates that the applicant has, on a regular basis, since July or August of 1980, been
performing those duties of a minister. During this same period he has been receiving $100 per
month, room and board, plus other donations of varying amounts. The duties previously
performed and the remuneration for this performance do not differ from the anticipated future
duties and remuneration. Employment as defined by Webster's New World Dictionary of the
American Language, Second College Edition, means: the thing at which one is employed; work;
occupation; profession; job. The record is clear that the applicant spent most of his life in the
attainment of the current level in his chosen profession. Since 1974, in Canada and in the United
States, he has engaged in this profession.
It is, therefore, concluded that the applicant was employed as a minister from about July or
August of 1980, prior to filing his application for permanent residence. Such employment was
not authorized and was inconsistent with his admission to the United States as a visitor. Pursuant
to 8 C.F.R. 214.1(e), a nonimmigrant in the United States in a class defined in section
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101(a)(15)(B) of the Act, 8 U.S.C. 1101(a)(15)(B), as a temporary visitor for pleasure, may not
engage in any employment. For this reason, the applicant is ineligible for adjustment of status
pursuant to section 245(c) of the Act and his application must be and is hereby denied.
ORDER: The application is denied.
Matter of Tong
16 I. & N. Dec. 593
August 15, 1978
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members
This case presents an appeal from a decision of the immigration judge on August 8, 1977,
finding the respondent deportable on the lodged charge and granting him the privilege of
voluntary departure, with an alternate order of deportation to Hong Kong. The immigration judge
denied the respondent's application for adjustment of status, pursuant to the provisions of section
245 of the Immigration and Nationality Act, as amended. The appeal will be dismissed.
The respondent is an unmarried native and citizen of Hong Kong who has resided in the United
States since August 1971. He is the beneficiary of a visa petition filed by his lawful permanent
resident mother and approved by the District Director in April 1975. The respondent was initially
authorized to remain here as a student until June 15, 1976. He was granted the privilege of
departing voluntarily by October 26, 1976, without the issuance of an Order to Show Cause, but
failed to leave this country. Deportability has been established by clear, convincing, and
unequivocal evidence.
The immigration judge noted the respondent's testimony that he has been self-employed since he
opened a used car dealership known as Eddie's Auto Sales on May 1, 1976 (Tr. p. 8), without
permission from the Service (Tr. p. 13). The immigration judge found that the respondent,
therefore, is precluded from qualifying for adjustment of status under the provisions of section
245(c) of the Act. Counsel contends on appeal that the respondent did not commence his
business until one year after graduation from college in 1975 and was no longer a student in May
1976. Counsel also contends that the immigration judge failed to address the issue as to whether
self-employment constitutes unauthorized employment, as that term appears in section 245, and
thereby precludes adjustment of status to aliens who have engaged in unauthorized employment.
The Service contends that the term “employment,” in section 245 of the Act, includes within its
meaning “self-employment” (p. 8).
Section 245(c) of the Act, as amended by P.L. 94–571, 90 Stat, 2703, effective January 1, 1977,
provides, in pertinent part, “The provisions of this section shall not be applicable to an alien ...
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who hereafter continues in or accepts unauthorized employment prior to filing an application for
adjustment of status....” Counsel in her first brief contended that the respondent's “status
approximates an investor and not an ‘employee’ as that term is commonly used.” It is the official
position of the Service, however, that it considers unauthorized self-employment by a beneficiary
of an approved relative visa petition as “unauthorized employment” within the purview of
section 245(c). We are in agreement with this position. Cf. Matter of Cheng, Interim Decision
2623 (BIA 1977). In the latter case, it was noted that on July 18, 1977, the Central Office of the
Service issued an instruction to all field offices whereby nunc pro tunc authorization to accept
employment was to be granted to any alien who was the beneficiary of a visa petition filed
before January 10, 1977, and who could, under 8 C.F.R. 245.2(a)(2), have properly filed an
application for adjustment with that visa petition. In the instant case, the respondent cannot
possibly benefit from the Service instruction because he is a native of Hong Kong and a visa was
never immediately available to him before January 10, 1977.
The word “employment” is a common one, generally used with relation to the most common
pursuits, and therefore ought to be received as understood in common parlance. The word
“employment” is also defined as meaning the act of being employed for one's self (30 C.J.S.
682). It should be self-evident, in view of all of the foregoing, that any and all types of
employment taken without proper authority constitute unauthorized employment.
A nonimmigrant alien has the obligation either to depart at the expiration of his authorized
period of stay, or to obtain a proper extension of that stay. In order to establish an alien's
deportability as an “overstay,” the Service need only show that the alien was admitted as a
nonimmigrant “... for a temporary period, that the period has elapsed, and that the nonimmigrant
has not departed.” See Milande v. INS, 484 F.2d 776 (7 Cir.1973); Matter of Teberen, Interim
Decision 2498 (BIA 1976). It should be clear that the respondent, no longer a student, is an
“overstay” in this country and has remained in the United States illegally.
Upon review of the record, we find that the decision of the immigration judge was correct in the
circumstances of this case. He granted the respondent a period of two months for voluntary
departure. We have held that in those cases in which a period exceeding 30 days has been
granted, the respondent will be given 30 days from the date of our decision in which to depart
voluntarily. See Matter of Chouliaris, Interim Decision 2572 (BIA 1977). The District Director,
however, is authorized to extend that period in his discretion. See 8 C.F.R. 244.2. Accordingly,
the appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that time as may be granted
by the District Director; and in the event of failure so to depart, the respondent shall be deported
as provided in the immigration judge's order.
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United States Department of Justice
Board of Immigration Appeals
Matter of Pozzoli
14 I. & N. Dec. 569
SFR-N-12749
January 28, 1974
This case is before the Regional Commissioner on certification pursuant to 8 CFR 103.4. The
District Director on August 13, 1973 denied the petition on the ground that beneficiary is not
seeking to enter the United States temporarily to render services to the petitioner but rather he
will continue to be employed by the petitioner's subsidiary in Italy.
The petitioner is seeking the services of the beneficiary at its corporation offices in San Jose,
California, as an Operation Research Manager to work with its General Products Division
Headquarters to establish a business plan and product strategy which reflects the needs of the
European market place.
The beneficiary is a native and citizen of Italy, presently residing in Milan. He has been
employed with the petitioner's subsidiary, International Business Machines, Italia, Milan, Italy,
since 1962. His present position is Operations Research Manager of a group working on
mathematical models to assist top management in making business decisions. The beneficiary's
previous employment with the petitioner's subsidiary was as a Marketing Manager of one of the
corporation's sales offices in Italy. The beneficiary's experience has been and will be utilized in
the area of marketing computer products. The petitionary corporation has stated in the petition
that the beneficiary will continue to be paid by the subsidiary company in his home country.
In his decision the District Director stated:
“Section 101(a)(15)(L) of the Act describes an intracompany transferee as “an alien who
immediately preceding the time of his application for admission into the United States has been
employed continuously for one year by a firm or corporation or other legal entity or an affilitate
or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to
render his services to the same employer or a subsidiary or affiliate thereof ...” The issue in this
case is does the beneficiary qualify under this section of law and may he be admitted to the
United States to perform services for a United States firm if his salary continues to be paid by his
previous foreign employer abroad.
No precedent decision exists in this matter. However, the Immigration Act has been historically
concerned with the source of remuneration for an alien's services. We refer specifically to two
decisions involving visitors for business, to wit: Matter of M--, 6 I. & N. Dec. 533, in which it
was held that the beneficiary was eligible under section B–1 if the actual accrual of profits
remains in a foreign country, and Matter of B-- and K--, 6 I. & N. Dec. 827, in which the term
“business” was not meant to exclude incidental employment if the accrual of profits continued to
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be from abroad. Further, and more directly to the point, Black's Law Dictionary, Revised Fourth
Edition, defines “service” in the following manner:
“Service” and “employment” generally implies that the employer, or person to whom the service
is due, both selects and compensates the employee, or person rendering the service. Ledvinka v.
Home Insurance Company of New York, 139 Md. 434, 115 A. 596, 597, 19 A.L.R. 167.
We construe the foregoing cited decisions to mean that the law recognizes the place where the
profits will accrue or where the services will be rendered as the source of the employee's
remuneration. Consequently, in the instant case it is construed that the beneficiary will be
rendering his services to IBM Italia S.p.A. in Milan, Italy. In that it is they who are compensating
his services, it must be to them that his services are due.
A careful review of the Congressional history of this section of law, as well as a general
overview of the laws of this country, respecting the employer-employee relationship, leads us to
conclude that it is the intent of section 101(a)(15)(L) of the Immigration and Nationality Act that
the employee or beneficiary be actually employed in the United States. A consultation with the
Internal Revenue Service reveals that though the beneficiary would still be liable for United
States income taxes in that the beneficiary will “render his services” in the United States even if
the salary is paid from a source abroad, the United States firm is relieved of its obligation to
withhold such income tax. Further, the United States employer would be relieved of his
responsibility to withhold state and any local taxes and, in addition, any such payments or
contributions which he may have to make under the Social Security Act or any other state or
local laws governing the security or compensation of its employees. To hold that a source of the
beneficiary's salary in this case and similar cases is immaterial would not only be contrary to the
heretofore discussed principles regarding employee-employer relationships but would mean that
this Service would be in the position of unilaterally discharging the prospective United States
employer from his responsibilities and obligations regarding his employee, to wit: the
beneficiary. We cannot conclude that it was the intent of the Congress for us to do so, even
though this section of law was enacted to facilitate the entry of employees of multi-national or
United States firms with subsidiaries abroad.
On the basis of the foregoing discussion, it is concluded that the beneficiary is not seeking to
enter the United States temporarily to render services to International Business Machines
Corporation, Monterey and Cottle Roads, San Jose, California, but rather he will continue to be
employed by IBM Italia S.p.A. in Milan, Italy. Consequently, he is not eligible for classification
as intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act and this petition must be and is hereby denied.”
In his brief the Counsel for the petitioner has argued:
“The District Director's decision did not indicate the existence of any evidence disputing the
truth of any statements made in the Corporation's petition or that the petition failed to establish
that the beneficiary met any of the statutory requirements for L–1 classification. Instead, the
decision asserted that the beneficiary was ineligible to come to the United States in an L–1
classification because he would not be rendering services to the Corporation so long as he
continued to be paid by IBM Italia. This conclusion was based (a) on erroneous and irrelevant
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interpretations of both section 101(a)(15)(L) of the Immigration and Nationality Act (the “Act”)
and the law regarding the employer-employee relationship and (b) on purported “policy”
considerations for which no support can be found or was cited in the statute, the regulations or
the statutory history.
The petition established that Mr. Pozzoli was employed continuously for more than one year by
IBM Italia, that he sought to enter the United States temporarily to work in a capacity that was
both managerial and involved specialized knowledge, and that the Corporation and IBM Italia
are affiliated. It seems clear, therefore, that regardless of whether he was coming to render his
services “to the same employer” (IBM Italia) or to an “affiliate thereof” (the Corporation), he has
met all of the statutory requirements. Nevertheless, the District Director's decision concluded:
“that the beneficiary is not seeking to enter the United States temporarily to render services to
International Business Machines Corporation, Monterey and Cottle Roads, San Jose, California,
but rather he will continue to be employed by IBM Italia S.p.A. in Milan, Italy. Consequently, he
is not eligible for classification as intracompany transferee pursuant to section 101(a)(15)(L) of
the Immigration and Nationality Act and this petition must be and is hereby denied.”
This conclusion is clearly erroneous as a matter of law because under the statute the beneficiary
is eligible for an L–1 classification if he seeks to enter the United States “to render his services”
to either the Corporation or IBM Italia, and the determination whether he is actually employed
by one or the other is not relevant.
However, assuming, arguendo, that the District Director's interpretation of section 101(a)(15)(L)
is correct, his conclusion as to Mr. Pozzoli's employer during his assignment in the United States
is manifestly incorrect. The rule for determining whether an individual is employed by an
employer is stated in 53 Am.Jur.2d, Master and Servant, S. 2:
While it is said that at common law there are four elements which are considered upon the
question whether the relationship of master and servant exists—namely, the selection and
engagement of the servant, the payment of wages, the power of dismissal, and the power of
control of the servant's conduct—the really essential element of the relationship is the right of
control, that is, the right of one person, the master, to order and control another, the servant, in
the performance of work by the latter, and the right to direct the manner in which the work shall
be done. It is, moreover, essential that the master shall have control and direction not only of the
employment to which the contract relates, but also of all of its details and the method of
performing the work.... In view of some courts, it is also necessary that this work be performed
on the business of the master or for his benefit.
“(In determining whether the right of control exists,) possession of either power to employ or the
power to discharge is regarded as very strong evidence of the existence of the master and servant
relationship, whereas the payment of wages is the least important factor. (Emphasis supplied;
footnotes omitted).
In this case, the assignee was selected to come to this country by the Corporation, not IBM Italia;
he will work at the Corporation's facility in San Jose; he will be subject to the direction and
control of the Corporation's, not IBM Italia's, employees at that location; he will be subject to
dismissal by employees of the Corporation, not of IBM Italia and the benefit from his service
will accrue to the Corporation, not to IBM Italia. The fact that he will be paid from the IBM
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Italia payroll is for valid reasons, discussed below, relating to employee benefits in his home
country and does not indicate that he is coming “to render his services to” IBM Italia. Under
these circumstances, the conclusion seems inescapable that the assignee will be employed by the
Corporation, and it should be perfectly clear that he will be rendering his services to the
Corporation, not IBM Italia.”
In his brief Counsel continues on to explain the factors which persuaded the Corporation's
decision to continue the beneficiary's pay through its foreign subsidiary:
“Most of the assignees the Corporation brings to the United States in the L–1 classification are
from the countries of Western Europe. These countries generally have more comprehensive
social security and social and health insurance benefits than those available in this country.
Unless they can retain the maximum amount of such benefits, many employees of the
Corporation's foreign subsidiaries are reluctant to accept international assignments.
Conditions and laws differ from country to country, but it appears that in some countries health
insurance becomes unavailable for any time during which an employee is not carried on the
payroll of his employer in his home country. In others it may be available, but the home country
employer is not able to make the appropriate deductions or contributions to the health insurance
program on behalf of the assignee unless he is on that employer's payroll. Similarly, the
employer in many countries cannot make social security and social insurance contributions for
employees unless they are on the employer's payroll. In some countries that permit payment by a
foreign employer or by the employee himself, the employee will actually receive smaller benefits
on account of such payments than he would have received if the same amounts were paid by his
home country employer through payroll deductions. Furthermore, in addition to social security,
all of the Corporation's foreign subsidiaries have pension plans for their employees, and
participation in certain of these plans is only available to employees on the home country payroll.
The loss or reduction of benefits outlined above can be so substantial that some employees will
refuse to accept international assignments unless they can be assured of retaining maximum
social security, social and health insurance and pension benefits. For many others who can make
the necessary contributions individually while on the payroll of an employer in the United States,
the administrative burden is so substantial that they decline such assignments anyway. In
addition, employees who take out long-term personal or mortgage loans often contract to have
payments deducted from their salaries under certain conditions. It would be a great
inconvenience to such employees to have to work out other arrangements with the lending
institutions involved in order to accept a temporary international assignment.
Thus the District Director's decision interprets a law designed to facilitate the assignment to this
country of employees of international businesses in such a way as to make such assignments
more difficult because they will be less attractive to the individual assignees.”
It is noted above that the District Director has made mention of and referred to the Congressional
history of the section of law at issue in this case and came to the conclusion that the intent of
section 101(a)(15)(L) of the Act was to have the employee be actually employed in the United
States. To this, Counsel for the petitioner in his brief has argued in reply:
“In addition, the reference in the decision to the intent of Congress is without foundation. A
review of the statute, applicable regulations thereunder and the relevant statutory history
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(H.R.Rep. No. 851, 91st Cong., 2d Sess. (1970) and Hearings on S.2593 Before Subcommittee
No. 1 of the House Committee on the Judiciary, 91st Cong., 1st Sess. (1969)) discloses no
indication whatever of any intent by Congress to require or even suggestion of requiring that an
assignee should be ineligible for L–1 classification unless he is paid from a payroll in the United
States.”
We have reviewed the statutory history cited above by Counsel and we must concur with his
conclusion. It is clear the whole purpose and intent of legislation as it related to intracompany
transferees was to facilitate transferring of key alien personnel freely within an organization
having offices in the United States as well as abroad.
It is our opinion that the District Director has erred in this case by his inference that IBM Italia is
a separate employer apart from the petitioning corporation. The facts are that the petitioning
corporation is the beneficiary's employer whether in Italy or in the United States. Therefore, it is
clear to us that the petitioner, a domestic corporation, in its petition is seeking to transfer the
beneficiary, to the United States to continue his employment as an executive of the Corporation;
and that such transfer is in accordance with the intent of Congress in its passage of legislation
amending the Act. The question of where the beneficiary's paycheck may originate is not a
relevant factor in determining the beneficiary's eligibility for the nonimmigrant classification
sought in the petition before us.
On the basis of all the factors in this case it is concluded that the beneficiary is eligible for
classification as an intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration
and Nationality Act, as amended, and the petition will be granted.
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United States Department of Justice
Board of Immigration Appeals
Matter of Hall
18 I. & N. Dec. 203
February 04, 1982
BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
At a deportation hearing conducted on December 19, 1978, an immigration judge found the
respondent deportable as an overstayed nonimmigrant pursuant to section 241(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), and statutorily ineligible for adjustment
of status under section 245 of the Act, 8 U.S.C. 1255, by reason of the unauthorized employment
bar of section 245(c)(2), 8 U.S.C. 1255(c)(2), but granted him the privilege of voluntary
departure in lieu of deportation. The respondent concedes deportability but contests the denial of
section 245 relief.
At the conclusion of the deportation hearing, as the immigration judge was stating his decision,
the respondent through counsel made an oral motion to reopen the proceedings to permit further
development of the record with respect to his eligibility for adjustment of status. The
immigration judge declared the hearing closed and refused to entertain the respondent's motion
to reopen. [FN1] Subsequent to the hearing, on December 26, 1978, the respondent submitted a
formal, written motion to reopen which the immigration judge denied in a decision dated
February 14, 1979. The respondent appealed from that decision and oral argument in the case
was heard by the Board on May 1, 1980.
In seeking to reopen deportation proceedings, it is incumbent upon the alien to make a prima
facie showing of eligibility for the relief sought. Matter of Rodriguez, 17 I & N. Dec. 105 (BIA
1979). The respondent has not sustained his burden. Upon careful consideration of the arguments
advanced by the respondent since the hearing, we are satisfied that section 245(c)(2) operates to
bar adjustment in his case. As no purpose would be served by reopening, the respondent's appeal
from the denial of his motion to reopen will be dismissed.
The record reflects that the respondent, a 36–year–old single male, a native and citizen of
Guyana, entered the United States at New York in May 1976 upon presentation of a
nonimmigrant visitor visa. He came to the United States for the purpose of attending a rally
sponsored by the Unification Church at Yankee Stadium. In July 1976, the respondent departed
New York for Puerto Rico to “work ... as a missionary” for the Unification Church (Tr. p. 9), a
pursuit in which he is apparently still engaged.
According to the respondent, his duties as a missionary consist of holding and attending
seminars, witnessing, visiting houses and teaching people on the street the word of God,
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distributing literature, helping people financially under Church auspices, and visiting churches.
Those duties also include selling toys, jewelry and trinkets as a means of raising funds for the
Church. The respondent estimates that he spends from one-third to one-half of his time fundraising.
The respondent testified that the proceeds of his fund-raising efforts are turned over to the
Director of the Church in Puerto Rico with whom he shares a rented house. In return, the
respondent receives full support from the Church which includes housing, food, clothing,
medical expenses, transportation, entertainment, toiletries, and other personal expenses. In
addition, the respondent is given approximately $25 in cash each month for “walking around”
money, enough to ensure that he has $10 in pocket money at all times.
The unauthorized employment bar of section 245(c)(2), added by the 1976 Amendments to the
Act, [FN2] renders ineligible for adjustment of status aliens (other than immediate relatives)
who, after the effective date of the bar, continued in or accepted authorized employment prior to
filing an adjustment application. The respondent continued his activities on behalf of the
Unification Church, which he does not contend were authorized by the Service, after the January
1, 1977, effective date of the bar. His adjustment application, based upon his status as the
beneficiary of an approved second-preference visa petition submitted by his lawful permanent
resident mother, was not filed until May 1977. The dispositive question, then, is whether those
activities constitute “employment” within the contemplation of section 245(c)(2). The
immigration judge answered that question in the affirmative, concluding that the respondent was
employed as a fund-raiser for the Church.
The respondent contends that the activities in question may not properly be characterized as
employment so as to bar him from the benefits of section 245. He describes his position with the
Church as an unpaid volunteer, not an employee, arguing that he labors for no salary. He submits
that his service as a missionary is not the type of pursuit Congress contemplated in enacting
section 245(c)(2). Finally, the respondent argues that his fund-raising efforts and his teaching,
proselytizing, and other religious duties are integral, indivisible parts of his missionary work and
that it is not within the province of the Immigration and Naturalization Service or the
immigration judge to determine what constitutes missionary work for any particular church.
The respondent's contention that he is an unpaid volunteer in the service of the Church is not
persuasive. He clearly receives compensation in return for his efforts on behalf of the Church. By
his own account, he is provided the wherewithal to cover both necessary and nonessential
expenses, such as entertainment and recreation. He is, in addition, given discretionary funds as
needed. The respondent's relationship with the Church in effect guarantees him a standard of
living similar to that of many moderate-income wage earners. The fact that he receives no fixed
salary or remuneration in an amount proportional to his success as a fund-raiser is, in our view,
immaterial.
The respondent insists that his work on behalf of the Unification Church is not the sort of
undertaking Congress intended to discourage with the imposition of the unauthorized
employment bar inasmuch as his activities have no adverse impact on the United States labor
force. As the respondent acknowledges, however, the legislative history of section 245(c)(2)
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provides little guidance as to the specific end or ends sought to be served by the bar. Congress'
sole statement of purpose, contained in the House Judiciary Committee report to the 1976
Amendments, [FN3] reads as follows:
... [under the proposed legislation,] aliens who are not defined as immediate relatives and who
accept unauthorized employment prior to filing their adjustment application would be ineligible
for adjustment of status. The Committee believes that this provision would deter many
nonimmigrants from violating the conditions of their admission by obtaining unauthorized
employment. Similar provisions were included in legislation which passed by the House of
Representatives during the 92d and 93rd Congresses. (Emphasis added.)
Concern over the impact of a nonimmigrant's unauthorized employment upon the American
labor force may well have been a motivating factor underlying the enactment of section
245(c)(2). However, Congress did not so indicate, either indirectly in the legislative history of
the proposal ultimately enacted or directly in the express language of the statute. [FN4] Absent a
clear expression of legislative intent, we are unwilling to conclude that detriment to American
labor was Congress' sole or, for that matter, primary concern.
Manifest in the report language quoted above is Congress' substantial interest—apart from its
arguable interest in protecting the domestic labor market—in the enforcement of our immigration
laws with respect to nonimmigrant aliens within our borders. Cf. Matter of Yazdani, 17 I & N.
Dec. 626 (BIA 1981). [FN5] Correlatively, by penalizing nonimmigrants who work in violation
of the terms of their admission. Congress may well have sought to discourage aliens admitted to
the United States for a temporary purpose from acquiring a source of funds to support a
prolonged unlawful stay in this country.
In any event, we are not persuaded that the respondent's activities as a fund-raiser are without
adverse impact on the United States labor market. Unlike the purely ministerial duties carried on
by the respondent, we consider the raising of funds a secular function which could successfully
be performed by persons or business enterprises outside the Church. We note, moreover, that the
respondent does not merely solicit donations in the name of the Unification Church but engages
in the sale of goods, an entrepreneurial undertaking which places the Church in competition with
other sellers of such goods.
Under the circumstances here presented, were the institution or organization for which the
respondent performs his fund-raising services not a church, we would have no difficulty in
finding the section 245(c)(2) bar applicable. We find no basis in the language or history of the
statute for carving out an exception to the bar in the case of a church, at least with respect to the
secular activities of its adherents.
We reject the respondent's suggestion that the Government, by isolating his fund-raising
activities, improperly seeks to dictate to the Unification Church the permissible scope of its
missionaries' duties. Determining the status or the duties of an individual within a religious
organization is one thing; determining whether that individual qualifies for status or benefits
under our immigration laws is another. Authority over the latter determination lies not with the
Unification Church or any other ecclesiastical body but with the secular authorities of the United
13
States. See Matter of Rhee, 16 I & N. Dec. 607 (BIA 1978).
In sum, we conclude that the respondent, through his fundraising activities, engaged in
employment without Service permission in contravention of section 245(c)(2) and consequently
is not eligible to adjust his status in this country to that of a lawful permanent resident. His
motion to reopen the proceedings to permit consideration of his application for adjustment of
status under section 245 was, therefore, properly denied. The appeal will be dismissed.
ORDER: The appeal is dismissed.
FN1 Prior to the deportation hearing, the District Director had denied the respondent's
application for adjustment of status on a ground other than that cited by the immigration judge,
i.e., section 212(a)(15) of the Act, 8 U.S.C. 1182(a)(15). The respondent contends that the
Service did not raise the unauthorized employment bar of section 245(c)(2) as a possible basis
for denial when he renewed his application at the hearing and that he was therefore denied an
opportunity to show that the bar did not apply in his case. Despite this objection, the immigration
judge ruled that the respondent had had adequate opportunity to demonstrate eligibility for the
relief sought.
FN2 1976 Amendments to the Immigration and Nationality Act, Pub.L. 94–571, 90 Stat. 2703
(effective January 1, 1977).
FN3 H.R.Rep. No. 94–1553, 94th Cong.2d Sess. (September 15, 1976), reprinted in 1976
U.S.Code Cong. & Ad. News 6073, 6084.
FN4 Congress could have, but did not, exempt from the bar nonimmigrants engaged in
employment determined to be of benefit to the United States. Cf. Matter of Raol, 16 I & N. Dec.
466 (BIA 1978). Our reluctance to read a limitation into the statute not placed there by Congress
is bolstered by the fact that an alien within the ambit of section 245(c)(2) is deprived of no
ultimate right under the immigration laws since he remains free to apply to a United States
consul abroad for an immigrant visa.
FN5 Pursuant to those immigration laws, a nonimmigrant is forbidden to work in this country
unless he has been accorded a nonimmigrant classification which authorizes employment or has
been granted specific work authorization from the Service; a nonimmigrant who is permitted to
work may engage only in such employment as has been authorized. 8 C.F.R. 214.1(e); 8
C.F.R.109.1(a).
14
United States Department of Justice
Board of Immigration Appeals
Matter of Tessel, Inc.
17 I. & N. Dec. 631
A-23107366
January 09, 1981
The petitioner is seeking to classify the beneficiary under section 203(a)(6) of the Immigration
and Nationality Act, based upon his occupation as vice-president and export director. The
petitioner is further claiming blanket labor certification under 20 C.F.R. 656.10(d)(2) as
Schedule A, Group IV. In order to qualify for this Schedule A certification the petitioner must
demonstrate that the beneficiary has been employed by the same international corporation or
organization abroad for the year immediately prior to the beneficiary's admission. This
employment must have been in a managerial or *632 executive position and it must be intended
that he continue in the United States in a similar capacity.
If the beneficiary is found qualified for the blanket labor certification, the only remaining
determination is whether he possesses the minimum requirements for successful performance of
the job duties as outlined on the Job Offer for Alien Employment form.
In his decision the Acting District Director found that the beneficiary was not qualified for
blanket labor certification. The basis for this finding was a failure to demonstrate that the
petitioner and the beneficiary's South African company are the same corporation, or that either is
the subsidiary or affiliate of the other. The Director found further that the beneficiary could not
qualified for sixth preference classification because he is not an employee. The Director found
him to be an entrepreneur or investor in his relationship to both the United States company and
the South African company.
The Regional Commissioner found that the issue over affiliate or subsidiary relationship was not
on point. He interpreted the plain language of the Labor Department regulation to limit
qualification of a beneficiary to the situation where he would be continuing employment within
the same international corporation or organization. The Regional Commissioner further found
that there was no evidence in the record to establish that the beneficiary was ever employed by
the South African company in a managerial or executive position.
The Attorney or record states in his brief that the blanket labor certification for Group IV
encompasses more than the “same international corporation” concept of the Regional
15
Commissioner. He further states that the required relationship under both the intracompany
nonimmigrant definition and the Schedule A provision is established through the common
ownership and control (management) or the companies involved.
The interpretation of the Labor Department regulation used by the Regional Commissioner is
inaccurate. The Department's handbook on 20 C.F.R. 656.10 on page 656–A–21 states: “The
words ‘same international corporations or organizations' used in the regulations are intended to
include ‘an affiliate or subsidiary thereof’ as provided in the Act.”
The Regional Commissioner's second reason for denial has been overcome through the
submission of a document which indicates that the beneficiary was appointed chairman of the
South African company on March 1, 1976. While he does not receive a salary as chairman he is
nonetheless an employee of the company.
The District Director's finding that the beneficiary fails to qualify for the preference sought
because he is a business investor and would more properly be classified as such under
nonpreference is without basis in law. The fact that one qualified for a particular status does not
preclude qualifying for another status.
The Director's holding (in which the Regional Commissioner also concurs) that an
employer/employee relationship cannot exist between the petitioner and beneficiary because they
are one and the same, fails to consider the precedent established in Matter of M, 8 I & N Dec. 24
(BIA 1958; A.G.1958), wherein it was held that a sixth-preference petition could be approved
where the petitioner was a corporation seeking the employment of even its sole stockholder. The
corporation is a separate legal entity from its stockholders and able to file a petition and employ
them.
The question of relationship between the two companies is the most crucial matter involved in
the instant case. The beneficiary owns 93% of the South African company and is its chairman.
He owns 60% of the petitioner and will be a manager of the corporation (Vice–President and
Export Director). It has previously been held that mere stock ownership and an informal
arrangement to do favors between companies does not constitute the requisite relationship for
qualification under section 101(a)(15)(L) of the Act, (Matter of Del Mar Ben, 15 I & N. Dec. 5
(R.C.1974)). But, Del Mar Ben is distinguishable because the stock ownership was minimal and
there was no degree of control or joint management. The instant case has a high percentage of
common ownership and common management, vesting effective control over both companies in
their owner/manager. Where there is a high percentage of ownership and common management
between two companies, either directly or through a third entity, those companies are “affiliated”
within the meaning of that term as used in section 101(a)(15)(L) of the Act.
16
Therefore, the instant companies are affiliated. The beneficiary has been employed for the
preceding year as an executive or manager of the foreign company and will be so employed by
the United States company. The beneficiary is qualified to be an “L–1,” and, therefore, does have
a Schedule A, Group IV, labor certification. The following order shall be entered.
IT IS ORDERED that the visa petition to classify the beneficiary under section 203(a)(6) be
approved.
17 I. & N. Dec. 631, Interim Decision 2849, 1981 WL 158802 (BIA)
United States Department of Justice
Board of Immigration Appeals
Matter of Lett
17 I. & N. Dec. 312
A-12852618
March 18, 1980
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
The respondent appeals from the June 8, 1979, decision of the immigration judge denying his
motion for reopening in order to apply for adjustment of status. The appeal will be dismissed for
a different reason than the immigration judge's conclusion.
The respondent is a native and citizen of Canada. He entered the United States on November 1,
1976, as a nonimmigrant visitor. On May 4, 1977, he conceded deportability under section
241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), for being excludable at
entry by virtue of his having been convicted in Toronto, Ontario on November 28, 1957, on six
counts of false pretenses under Section 304A of the Criminal Code of Canada (Ex. 1) (Tr. p. 2).
On April 26, 1978, he submitted an application for adjustment of status (Form I–485) supported
by a request for determination as an investor (Form I–526) seeking an exemption from the labor
certification requirement of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14). That application
was treated as a motion to reopen pursuant to 8 C.F.R. 242.22.
The immigration judge denied the motion ruling that the respondent's management of his
investment constituted unauthorized self-employment which barred him from adjusting his status
under the preclusion from adjustment prescribed by section 245(c)(2) of the Act, 8 U.S.C.
17
1255(c)(2). The immigration judge relied on our decision in Matter of Tong, 16 I & N Dec. 593
(BIA 1978), where we held that a beneficiary of an approved relative visa petition, who was not
an immediate relative of a United States citizen and engaged in unauthorized self-employment,
was engaged in unauthorized employment. This precluded him from having his status adjusted
under section 245(c)(2) of the Act. The immigration judge erred in extrapolating the Tong
rationale to an applicant for an exemption from the labor certification requirement as an investor.
The respondent properly pointed out the clarification by the Service's Assistant Commissioner
for Adjudications stating that self-employment without prior authorization does not have the
same meaning as unauthorized and does not preclude adjustment of status under section
245(c)(2) in the case of a qualified nonpreference investor. An unsuccessful applicant for an
investor exemption from the labor certification requirement runs the risk that work performed in
connection with his nonqualifying investment may be considered unauthorized employment. If,
however, the applicant is deemed a qualified investor of an enterprise with capital exceeding
$40,000 and with qualified employees, his management work does not constitute employment
within the contemplation of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14).
Nevertheless, the immigration judge properly denied the motion to reopen. A motion to reopen
must be supported by prima facie evidence of eligibility for the relief sought. Matter of Lam, 14 I
& N Dec. 98 (BIA 1972); Matter of Sipus, 14 I & N Dec. 229 (BIA 1972). The respondent was
found deportable for being excludable at entry under section 212(a)(9) of the Act, 8 U.S.C.
1182(a)(9). He remains excludable. In order to obtain relief from his excludability he must
submit an application for *314 212(h) waiver (Form I–601) supported by a showing of extreme
hardship to the respondent's United States citizen child. Without such an application the motion
to reopen lacked prima facie evidence of eligibility for adjustment of status. Accordingly, the
appeal will be dismissed without prejudice to a future motion with the proper documentation.
ORDER: The appeal is dismissed.
18