ZANG
The petition seeks to classify the beneficiary as a preference immigrant under section 203 (a) (6) of the Immigration and Nationality Act, as amended, for employment as a licensed contractor or construction superintendent.
The beneficiary is a citizen of Israel, born February 21, 1944, in Israel. He is an equal partner in a general contracting company and is primarily engaged in the field operation of this firm. He intends to continue in his present calling.
Section 203 (a) (6) of the Act, as amended, provides for the availability of visas to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.
Section 203 (a) (8) of the Act provides, inter alia, that no immigrant visa shall be issued to an immigrant with a preference under section 203 (a) (6) of the Act until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212 (a) (14) of the Act. The latter section also specifically makes sixth preference beneficiaries
On September 1, 1967, the beneficiary entered into an equal partnership agreement for the establishment of an independent general contracting firm. His initial cash investment was one thousand dollars, and his partner invested five thousand dollars. Petitioner, through counsel, proposes that the partnership agreement was predicated on the basis of the beneficiary‘s knowledge of the construction business and his licensure by the State of Michigan as a building contractor; that his knowledge, experience and licensure, coupled with the cash investment of one thousand dollars, was at least equivalent to his petitioner‘s cash investment. Two financial statements submitted in support of the petition reflect that the present assets of the petitioning company are $27,985.82, an increase of more than one hundred per cent during the period from January 1968 to November 1968. From the evidence presented, it is considered that the business is enjoying some degree of success when considered by the standards normally applied to a small business venture.
Petitioner, at Service direction, applied to the Bureau of Employment Security, Department of Labor, for the certification required by section 212 (a) (14) of the Act, as amended. Under date of July 9, 1968, the Regional Administrator, Bureau of Employment Security, Chicago, Illinois, rejected the application for alien employment certification on the following grounds:
We note in item 20 of ES 575B, that the alien will be paid a share of the profits rather than a regular salary. It appears from the application that Mr. Zang will be a partner in the business rather than an employee of the firm. Persons who will be self-employed in the United States are not eligible for alien employment certification. Consequently, we are returning your request without action by the Department of Labor.
The Regional Administrator‘s remarks are interpreted to indicate that the beneficiary is either being considered as an investor and not required a certification under
an alien who will engage in a commercial or agricultural enterprise in which he had invested or is actively in the process of investing a substantial amount of capital.
Webster‘s New World Dictionary, College Edition, defines capital in the pertinent parts as:
—wealth (money or property) owned or used in business by a person, corporation etc., an accumulated stock of such wealth; wealth, in whatever form, used or capable of being used to produce more wealth; hence, any source of profit or benefit; assets; resources, as energy and education are his only capital.
The same authority defines property when considered in connection with capital as:
the right to possess, use and dispose of something; ownership; as property in land. a thing or things owned; holdings or possessions collectively; especially, a land or real estate owned.—any trait or attribute proper to a thing, or, formerly, to a person.—something regarded as being possessed by, or at the disposal, of a person or group of persons:
Applying these definitions to the instant case, it may be considered that the beneficiary has invested and is actively investing capital, both in the form of cash and property, in a commercial enterprise in which he is presently engaged and in which he intends to continue. Although the beneficiary has only invested $13,992.60 on the basis of the firm‘s most recent financial statement, the nature of the construction industry is such that the fixed assets of a particular company is not a true reflection of its worth. No large inventory of equipment and goods is required; the physical plant need be neither complex nor extensive and with the exception of heavy equipment, which can be leased or subcontracted, most of the employees will possess their own tools and light equipment; therefore, though a small investment in the light of heavy industry and the world of high finance, by small business standards this investment is considered to be substantial.
In considering whether a petition in behalf of the equal partner of the petitioning firm is proper, we find that the Matter of M—, 8 I. & N. Dec. 24, holds the sole owner of the petitioning corporation to be properly considered the beneficiary of a preference immigrant visa petition. The language of
The beneficiary may be considered qualified as an investor within the meaning of
When this case was first considered, nonpreference visa numbers were unavailable and the alien beneficiary did not qualify as a special immigrant. Since nonpreference visa numbers are presently available and the beneficiary may qualify as an investor, consideration under this classification will be accorded to the beneficiary in the event that an appropriate application is filed.
In view of the requirement that a petition to classify a beneficiary as a preference immigrant under section 203 (a) (6) of the Act must be supported by a certification by the Secretary of Labor, notwithstanding the fact that the beneficiary might be exempt from the need for such certification if applying for immigrant status as a nonpreference or special immigrant, and the petitioner has not presented such a certification, the petition must be denied for lack of a valid unexpired labor certification. Pursuant to
It is ordered that the petition be denied for lack of a certification issued pursuant to section 212 (a) (14) of the Act by the Secretary of Labor.