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Konishi v. Immigration and Naturalization Service

Facts

Konishi entered this country as a visitor in February, 1973, and in April of that year he had the status of a student. In March, 1975, he sought that of a permanent resident under 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). Permanent resident status was refused by the immigration judge and by the Board of Immigration Appeals. Konishi claims to have invested more than $40,000 in an art gallery for the sale of his own work. The immigration judge found that he had not invested the necessary $10,000 and thus was not entitled to an adjustment of his status.

Konishi entered this country as a visitor in February, 1973, and in April of that year he had the status of a student. In March, 1975, he sought that of a permanent resident under 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). Permanent resident status was refused by the immigration judge and by the Board of Immigration Appeals. Konishi claims to have invested more than $40,000 in an art gallery for the sale of his own work. The immigration judge found that he had not invested the necessary $10,000 and thus was not entitled to an adjustment of his status.

Issue

Whether Konishi qualifies for the investor exemption to the labor certification requirement under the Immigration and Nationality Act.

Whether Konishi qualifies for the investor exemption to the labor certification requirement under the Immigration and Nationality Act.

Rule

The investor exemption, defined in 8 C.F.R. 212.8(b)(4), applies to an alien who will engage in a commercial or agricultural enterprise in which he has invested or is actively in the process of investing a substantial amount of capital.

The investor exemption, defined in 8 C.F.R. 212.8(b)(4), applies to an alien who will engage in a commercial or agricultural enterprise in which he has invested or is actively in the process of investing a substantial amount of capital.

Analysis

The court analyzed whether the Board's interpretation of the phrase 'substantial amount of capital' was valid and whether Konishi had notice of the criteria applied by the Board. The court noted that the Board's decision in Heitland and its application to the 1973 regulations were impermissible circumventions of the rulemaking process, and that those aliens who invested before December, 1976 had no notice of the application of the Heitland criteria to the 1973 regulations.

The court analyzed whether the Board's interpretation of the phrase 'substantial amount of capital' was valid and whether Konishi had notice of the criteria applied by the Board. The court noted that the Board's decision in Heitland and its application to the 1973 regulations were impermissible circumventions of the rulemaking process, and that those aliens who invested before December, 1976 had no notice of the application of the Heitland criteria to the 1973 regulations.

Conclusion

The court vacated the Board's denial of Konishi's application for permanent resident status and remanded for further consideration.

The court vacated the Board's denial of Konishi's application for permanent resident status and remanded for further consideration.

Who won?

Konishi prevailed in the case because the court found that the Board's application of its policy was not properly communicated and that he may qualify for the investor exemption.

Konishi prevailed in the case because the court found that the Board's application of its policy was not properly communicated and that he may qualify for the investor exemption.

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