Petition for review of decision of the Board of Immigration Appeals denying petitioner's application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255. Denied.
Before Feinberg and Mansfield, Circuit Judges, and Mishler, Chief District Judge.*fn*
Om Prakash Jain, a citizen of India in this country on a nonimmigrant business visa, petitions for review of a decision of the Board of Immigration Appeals, which denied his application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255. The Board based its denial, in the exercise of its discretion, on a finding that petitioner entered the United States with a preconceived intent to remain permanently in this country. Petitioner's principal claim is that this is an improper reason for denying relief under section 245. For reasons given below, we reject this contention, along with petitioner's other arguments. We therefore deny the petition for review and affirm the decision of the Board.
The facts, as they appear in the record before us, may fairly be summarized as follows. This is petitioner Jain's third stay in the United States. The first began in June 1974, when he was 23 years old and was admitted on a nonimmigrant visa as a visitor for business. Jain had obtained that visa as the proprietor and business representative of a company located in Jaipur, India, which exported gems, beads and semi-precious stones. Jain remained here for four to five weeks looking for customers, but left without success. A little over a year later, Jain returned in the same capacity as before, and again found no customers. After staying in this country a month, Jain again departed. While he was here, however, Jain apparently conceived the idea of creating a company within the United States to import beads and jewelry from India and keep an inventory here. This would allow Jain to guarantee quick delivery to potential customers, thus overcoming the difficulty he had earlier encountered in seeking to sell his goods. Before he left this country on this second visit, Jain retained an attorney, created a new import company supposedly located in the room at the hotel where he stayed, filed a certificate of doing business under the assumed name of Asian Imports and obtained a social security number for himself.
Upon his return to India, Jain quickly liquidated his export firm in Jaipur by turning it over to his brother. Thereafter, he reentered the United States in January 1976 on a nonimmigrant business visa good for four months, as the representative of his former export business. The true reason for his return, however, was to run Asian Imports, his newly established enterprise here. Within a month, Jain also applied to the Immigration and Naturalization Service for adjustment of his status to that of permanent resident alien. The basis of the application was his alleged status as an investor, a term of art in this context more fully described below.
Two years later, the District Director of the Service denied Jain's application for adjustment of status because of his lack of good faith in applying for his nonimmigrant visa abroad. After Jain failed to depart voluntarily, the Service began deportation proceedings. Before an immigration judge, Jain conceded his deportability, but again sought adjustment of status as an investor and, in the alternative, applied for reinstatement of voluntary departure status.*fn1 After a hearing, the immigration judge held in August 1978 that Jain did not qualify as an investor and, alternatively, that even if he did, his application would be denied on discretionary grounds because Jain last entered this country with a preconceived intent to remain permanently. On appeal, the Board in July 1979 affirmed the decision of the immigration judge on the second, discretionary ground, and granted Jain again the privilege of voluntary departure. Jain's petition to us for review allows him to enjoy the automatic stay of deportation that accompanies such action, 8 U.S.C. § 1105a(a) (3), and almost four years have now elapsed since Jain's entry in January 1976 on a four-month business visa.
Before discussing the main issue on appeal, it is helpful to examine briefly the relevant statutory framework. The Immigration and Nationality Act (the Act) distinguishes between two groups of entering aliens the immigrant and the nonimmigrant. The immigrant seeks entry on a permanent basis as a resident. Prior to entry, an immigrant must obtain an immigrant visa at a consular office abroad. Such visas are divided into various preference categories and since the number of immigrant visas available during one year is limited for certain categories, immigrant visas are issued in chronological order to qualified applicants. See 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 3.4a.
The Act presumes that entering aliens seek to do so as immigrants. Consequently, nonimmigrants those aliens seeking entry only for a limited time and purpose bear the burden of demonstrating to the United States consular officials abroad and the immigration authorities in this country that they are bona fide nonimmigrants. 8 U.S.C. §§ 1184, 1361. Jain, like many nonimmigrants, obtained entry under a nonimmigrant visa for business. Such a visa allows an alien to conduct business in the United States for a foreign employer for a limited period. 8 C.F.R. 214.2(b). However, in order to establish his bona fide nonimmigrant status and thereby qualify for such a visa, a nonimmigrant is required to demonstrate to the satisfaction of the immigration authorities that he has a foreign residence that he has no intention of abandoning and that he will depart voluntarily at the end of his authorized stay. 8 U.S.C. § 1101(a)(15)(B).
Under earlier versions of the Act, nonimmigrant aliens who sought to adjust their status to that of immigrants were required to leave the country and seek reentry as immigrants. To ameliorate this hardship, the Immigration and Naturalization Service devised an administrative procedure, known as pre- examination, under which nonimmigrant aliens were examined by immigration officials in the United States and were issued an immigrant visa by the consular office in Canada if their admissibility as immigrants was established. See 2 C. Gordon & H. Rosenfield, supra, § 7.3a. This procedure was used extensively for many years.*fn2 In 1952, Congress enacted section 245 of the Act, 8 U.S.C. § 1255, to obviate the need for the pre-examination procedure. The current version of the statute provides in pertinent part:
(a) The status of an alien, other than an alien crewman, 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 approved.
Thus, a nonimmigrant alien may now adjust his status to that of an immigrant without leaving the country if he is admissible for permanent residence and is eligible for an immigrant visa, which is "immediately available" to him. However, even if the nonimmigrant satisfies these express statutory requirements, the Service has discretion under section 245 to deny the application for adjustment of status. Furthermore, the alien bears the burden of persuading the Service to exercise its discretion favorably, since adjustment of status under section 245 is considered to be extraordinary relief. See 2 C. Gordon & H. Rosenfield, supra, § 7.7d.
The deceptively brief statutory requirements of section 245 nonetheless pose complex administrative problems. One major obstacle facing section 245 applicants is to demonstrate that an immigrant visa is "immediately available." The law governing the availability of visas is complicated, and if a nonimmigrant cannot establish an exemption from the numerical limitations applicable to certain categories of immigrant visas, he must await the chronological distribution of such visas. Furthermore, certain categories of immigrant visas are unavailable unless the applicant either obtains a certification from the Secretary of Labor that his employment in this country will not affect the American labor market adversely or establishes an exemption from this certification requirement. Jain apparently was eligible only for this type of visa and therefore attempted to establish an exemption from the certification requirement as an investor in a domestic enterprise. The investor exemption, at the time Jain applied, allowed waiver of the certification requirement if the alien had invested over $10,000 in an enterprise that he managed and that directly created domestic job opportunities. Mehta v. Immigration and Naturalization Service, 574 F.2d 701 (2d Cir. 1978). While Jain's investment in Asian Imports apparently satisfied the requisite amount, the immigration judge found that Jain was ineligible for the investor exemption because his enterprise had "failed to expand job opportunities for anyone in this country." Relying on the authority of Mehta, supra, the judge therefore found that Jain ...