E-2 Visa: Matter of Udagawa, 14 I&N Dec. 578 (BIA 1974)


I. SUMMARY

The applicant is a Japanese national who was denied entry into the United States under an E-2 visa. He was to work as a specialized tempura chef in a San Francisco restaurant and the basis of his entry was to find and train American chefs until they were competent in the art. While the applicant has no significant monetary investments, he is argued to be a key figure in the business and should be admitted.

II. FACTS

  • The applicant has intent to return to his home country after achieving his goal of finding a suitable American worker.

  • The applicant has no significant funds invested into the business.

  • The applicant has had at least a year in education in his respective field and 2 years of practical experience.

  • The applicant came to replace another tempura chef who has left the business.

  • His goal is to find a suitable American tempura chef but this goal has not been achieved.

III. LEGAL ANALYSIS

1. Standards for Consideration

In section 212(a)(14) of the Immigration and Nationality Act Congress states a desire to protect domestic American labor markets by preventing the presence of unqualified unskilled and skilled foreign labor.

2. Standard for Denial

  • The position that the applicant wishes to fill can be filled by American citizens if the proper compensation was provided for the level of skill required.

  • The applicant’s position cannot be categorized as an essential managerial or executive position nor essential to the running of the business per the regulations of the E-2 visa.

IV. CONCLUSION

The court has dismissed the applicant’s appeal on the grounds that the applicant (1) does not fit the E visas’ requirement of being employed in a responsible capacity by a treaty investor. As an employee, he is in no managerial nor any executive position and thus does not apply for a E-2 visa. Furthermore, the stated reason for the applicant’s being in the United States is found to be invalid and a hindrance to US citizens’ labor market’s availability and a statement on the treaty investor’s refusal to adhere to labor market demands regarding the position he wishes to fill with the applicant. As a result, the court has rejected the applicant’s appeal for a change of status to an E-2 visa.

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