E-2 Visa: Matter of Nago, 16 I&N Dec. 446 (BIA 1978)

July 4, 2018

 

 

 

I. SUMMARY

 

The applicant is a Japanese national who is applying for a treaty investor status on his arrival to the United States. The applicant is a highly skilled chef in a specific Japanese form of cooking and has come to assist another treaty investor business by training US citizens in this particular form of cooking.

 

II. FACTS

 

  • The applicant had arrived in the United States with an E-2 visa but was informed that he could be excludable under a different statute.

  • The applicant is highly knowledgeable in the specific form of cooking and is a graduate of a leading culinary school in Japan.

  • The applicant has come to teach others in the art form and intends to leave after a period of one year.

  • The court finds that the specific form of cooking is a highly technical art form that requires professional instruction.

 

III. LEGAL ANALYSIS

 

Standard for Consideration

  • The relevant legislation is in the section defining the E-2 visa in the treaty investor treaty with Japan as well as defined in Matter of Udagawa.

  • Immigrants can be classified as a treaty investor if he shows his intention to depart after his termination and if he is employed in a responsibly matter by his employer of the same nationality.

Standard for Approval

  • The court finds that the applicant is skilled in a specific set of skills that renders him critical to the operation of the treaty investor business.

  • The court also noted the applicant’s intent to return to Japan after he has sufficiently trained subordinates in his set of skills.

 

IV. CONCLUSION

 

The court has dismissed the appeal from the Immigration and Naturalization Service and has decided to issue the applicant treaty investor status on the basis that his employment constitutes a responsible capacity based on the amount of skill that is required in his profession and that his intent to return to Japan after his goal of finding an appropriate substitute is complete qualifies him for treaty investor status and can remain in the United States.

 

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