Masoa Konishi v. Immigration and Naturalization Service

Konishi sought the status of a permanent resident alien. The Board of Immigration Appeals refused his request. We vacate and remand for further consideration.

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 is confronted by the labor certification requirement of § 212(a)(14) of the Act, 8 U.S.C. § 1182 (a)(14). However, he claims to fall within the investor exemption to that requirement. This exemption, defined in 8 C.F.R. § 212.8 (b)(4), has changed over the years. In its original form it read:

31 Fed.Reg. 10021 (1966). In 1973 clause (4) was amended to read:

38 Fed.Reg. 1380 (1973). In 1976 that same clause was amended to its present form, but it is the 1973 version that applies to this case.

Konishi is an artist. He 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…