Matter of Sonegawa

Discussion: This case comes forward on appeal from the decision of the District Director, Los Angeles who denied the petition on May 31, 1987 in that it had not been established that the petitioner could meet the wage requirements of the position certified by the Secretary of Labor. Oral argument was requested and granted. Petitioner appeared with counsel as scheduled. The petitioner is the owner and proprietor of a fashionable "custom dress and boutique" shop in Pasadena, California, specializing in women clothes of oriental fabric and design. The shop was estab- lished in 1956 and does an annual gross business of about $100,000. In addition to the petitioner, there are four regular employees and from one to four part-time employees. Petitioner has been doing her own designing and creations and now seeks the services of the beneficiary as an "assistant designer for oriental arts". Form ES-575B, "Job Offer for Alien Employment", describes the duties of the position as follows: "Has to be able to do embroidery, beading, speeial handwork, designing, pattern work cutting, fitting, and finishing. She will be

讨论：本案因不服洛杉矶地区主任于1987年5月31日作出的拒绝申请的决定而提出上诉，该决定认为未能确立申请人能够满足劳工部长所证明职位的工资要求。 已请求并获准进行口头辩论。申请人按预定时间与律师出庭。 申请人是加利福尼亚州帕萨迪纳一家时尚“定制服装和精品”店的所有人和女店主，专门经营东方面料和设计的女装。该店成立于1956年，年总营业额约为$100,000。除申请人外，还有四名正式雇员和一到四名兼职雇员。申请人一直自己从事设计和创作，现在寻求受益人的服务，担任“东方艺术助理设计师”。表格ES-575B“外国人就业工作邀请”对该职位的职责描述如下：“必须能够进行刺绣、串珠、特殊手工、设计、制版裁剪、试衣和收尾。她将

working in an air conditioned shop, working with modern equipment, and in nice surroundings." The education and training requirements for the position are described as, "She has to have at least five years experience in dress designing, pattern making, and cutting. Must also be able to do embroidery and fitting." The salary offered is $3.00 an hour for a 40 hour week. The certification required by section 212(a) (14) of the Immigra- tion and Nationality Act, as amended, as to the availability of like labor in the United States has been issued by the Department of Labor, which titled the poition certified as "clothes designer" with a code 142.081. The beneficiary is a 35-year-old single female, a native and citizen of Japan. She was admitted to the United States at Honolulu, Hawaii as a visitor for business on February 6, 1965 as a representative of a Japanese import firm to research United States markets for prod- ucts attractive to Japanese business. She subsequently applied for a change of nonimmigrant status to that of a student which was denied and beneficiary returned to Japan in September 1966. Evidence presented shows that the beneficiary graduated from high school in Japan in 1951 and that she attended the Musashino Dress Making Women's College in Tokyo from October 1955 to September 1957 completing a course in professional techniques of dress making, cutting , and embroidery and also fitting, and was awarded a gradua- tion diploma on March 31, 1958. On March 31, 1957 she was awarded a certificate of merit for outstanding work by the school. She also pre- sented a certificate showing completion of a "designers course" from the Dress Makers Women's College, Tokyo on March 30, 1959 and a diploma showing completion of a two-year course in oriental interior design from Nippon Design College in Tokyo on March 25, 1964. She was issued an instructor's license in dress making on March 28, 1959 by the Japanese Department of Labor in Tokyo. From 1957 to March 1962 she was a part-time instructor in. dress making at the Pair Dress in Tokyo, from April 1959 to August 1962 she was also employed by Shinobu Dress Making in Tokyo as chief designer where she was employed in designing, cutting and fitting custom made clothes. From September 1962 to January 1965 she was employed by K. K. Esu in Tokyo as a consulting executive designer for ready made manufactured clothes. Here she did original designing and pattern making and worked as a supervisor and trainer of other employees. From the evidence submitted it is well established that the beneficiary is qualified for performance of the duties of the position. Section 203(a) (6) of the Immigration and Nationality Act, as amended, provides for the availability of visas to qualified immigrants

在有空调的店铺工作，使用现代设备，环境良好。”该职位的教育和培训要求描述为：“她必须至少有五年服装设计、制版和裁剪经验。还必须能够进行刺绣和试衣。”提供的工资为每小时$3.00，每周40小时。 经修订的《移民和国籍法》第212(a)(14)条所要求的关于美国境内同类劳动力可用性的证明已由劳工部签发，该部将所证明职位定名为“服装设计师”，代码142.081。 受益人为35岁单身女性，日本国民和公民。她于1965年2月6日作为一家日本进口公司的代表，以商务访客身份在夏威夷檀香山获准入境，为日本企业研究有吸引力的美国产品市场。她随后申请将非移民身份变更为学生身份，但被拒绝，受益人于1966年9月返回日本。 提交的证据显示，受益人于1951年从日本高中毕业，并于1955年10月至1957年9月在东京武藏野服装女子学院就读，完成了服装制作、裁剪和刺绣以及试衣专业技术的课程，并于1958年3月31日获得毕业文凭。1957年3月31日，她因成绩优异获得该校颁发的奖状。她还提交了一份证书，显示于1959年3月30日完成东京服装女子学院的“设计师课程”，以及一份文凭，显示于1964年3月25日完成东京日本设计学院的两年制东方室内设计课程。她于1959年3月28日获得东京日本劳工部颁发的服装制作教师资格执照。 从1957年到1962年3月，她在东京Pair Dress担任服装制作兼职教师；从1959年4月到1962年8月，她还受雇于东京Shinobu Dress Making担任首席设计师，从事定制服装的设计、裁剪和试衣。从1962年9月到1965年1月，她受雇于东京K. K. Esu，担任成衣制造的咨询执行设计师。在此她从事原创设计和制版，并担任其他雇员的监督和培训员。从提交的证据可以充分确立，受益人具备履行该职位职责的资格。 经修订的《移民和国籍法》第203(a)(6)条规定，向合格移民提供签证

Interim Decision #1835

临时决定 #1835

who are capable of performing skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable amd willing persons exist in the United. States. Section 204(a) of the Act provides that any person desiring and intending to employ within the United States an alien entitled to clas- sification as a preference immigrant under section 203(a) (6) may file a petition with the Attorney General for such classification. The term "desiring and intending to employ" contemplates not only the physical facilities to utilize such services but the financial ability to meet the wage requirements of the certified job offer. The District Director in his denial order stated :

该等移民能够从事美国境内存在可雇用且愿意雇用人员短缺的、非临时性或季节性的熟练或非熟练劳动。 该法第204(a)条规定，任何希望并打算在美国境内雇用有权根据第203(a)(6)条被归类为优先移民的外国人的人，可以向司法部长提交申请，要求给予该分类。 “希望并打算雇用”一词不仅设想使用此类服务的物理设施，还设想满足经证明工作邀请工资要求的财务能力。 地区主任在其拒绝令中表示：

Tour 1906 income tax return indicates a net business profit of $280. In your application to the Secretary of Labor for the certification required by section 212 (a) (14) you alleged that the beneficiary will be employed eight hours per day, 40 hours per week, at a salary of $3.00 per hour. Ton will then be obliged to pay the beneficiary a yearly wage of $6,240 which is considerably in excess of the net profit for 1986. Petitioner has been in business in a competitive field for over 11 years. There is no evidence that she will not continue in business for many more years. The fact that she is seeking the services of an orien- tal clothes designer is in itself evidence that she plans to continue in the business. Petitioner has been making a living for herself and employing from four to eight employees without any evidence of finan- cial difficulties. She has admitted that 1966 was not a good year. In that year petitioner changed to a better location, and for five months paid double rent; on her old place and on her new place. There were large moving costs and also a period of time when she was unable to- do regular business. She has presented a financial statement prepared by an accounting firm in Pasadena date& May 31, 1967 which shows• that the petitioner from January 1, 196/ to May 31, 1967 has made a net profit of $4,774. Petitioner states that with the addition of an authentic oriental designer from Japan she will substantially increase her business not only in the actual number of clients but also to the type of customer who is willing to pay a higher price for authentic Japanese designs and patterns. The petitioner's shop is well recog- nized in Pasadena. The dress shop was the subject of a news article in a fashion magazine which stated in part :

Tour 1906年所得税申报表显示净营业利润为$280。在你向劳工部长提交的、申请第212(a)(14)条所要求认证的申请中，你声称受益人将每天工作八小时、每周40小时，时薪为$3.00。届时Ton将有义务向受益人支付每年$6,240的工资，这大大超过1986年的净利润。 申请人已在竞争激烈的领域经营超过11年。没有证据表明她不会继续经营许多年。她正在寻求一位东方服装设计师的服务这一事实本身，就是她计划继续经营该业务的证据。申请人一直自食其力，并雇用了四到八名员工，没有任何财务困难的证据。她承认1966年不是好年景。那一年申请人迁至更好的地点，并在五个月里支付双倍租金：旧址和新址的租金。搬迁费用很大，还有一段时间她无法正常营业。她提交了一份由帕萨迪纳一家会计师事务所于1967年5月31日编制的财务报表，该表显示申请人从196/年1月1日至1967年5月31日已实现净利润$4,774。申请人表示，随着一位来自日本的真正东方设计师的加入，她将大幅增加业务，不仅在实际客户数量上，而且在愿意为真正的日本设计和图案支付更高价格的客户类型上。申请人的店铺在帕萨迪纳广受认可。这家服装店曾在一本时尚杂志的一篇新闻文章中成为报道对象，该文章部分写道：

Interim Decision #1835

临时决定 #1835

of Shibui as the theme of all her designs. Shibui is a Japanese word with nuances of meaning . . . lovely, understated, beautiful . . . and, certainly, these adjec- tives apply to her work. On appeal petitioner presented her income tax returns for 1966 showing that she paid over $19,000 in wages to four regular employees and four part-time employees. She presented evidence in the form of a scrapbook showing that she is well known for her designs and fashions and outstanding in her field. Time and Look magazines have published full colored pages of her creations as has the Fashion Service Review as well as numerous other fashion magazines. Petitioner has made most of the gowns for the Miss Universe of the Long Beach beauty pageant. She has as clients movie actresses and society matrons. Her clients have been inoluded in the lists of the best dressed California women. Peti- tioner makes numerous .appearances at design and fashion shows throughout the United States lecturing on fabric, design and tech- niques. She also lectures at colleges and universities in California and at home economic institutes on these subjects. She received fees for the appearances which are not included in the income of her store. Her reputation as a fashion designer and couturiere makes her in demand. Petitioner states that because she must on occasion be away from her business, she is in urgent need of the services of the beneficiary. Her business has increased at the new location and she is unable to keep up with the demands of the work. The fact that petitioner was able to show only a net profit of $280 for the calendar year of 1966 does not in itself preclude the beneficiary from establishing that she will be able to meet the conditions of the certification in the "Job Offer". After careful consIderation of all the above circumstances, we find that the petitioner,' S expectations of con- tinued increase in business and increasing profits are reasonable expectations and that it has been established that she has the ability to pay the beneficiary the stipulated wages and meet the conditions of the certification. We find that the beneficiary is eligible for the classification sought. The appeal will be sustained and the petition granted. ORDER: It is ordered that the appeal be sustained and the peti- tion granted.

Shibui作为她所有设计的主题。Shibui是一个日语词，具有微妙的含义……可爱、含蓄、美丽……而且，当然，这些形容词适用于她的作品。 在上诉中，申请人提交了她1966年的所得税申报表，显示她向四名正式雇员和四名兼职雇员支付了超过$19,000的工资。她以剪贴簿的形式提交证据，显示她以其设计和时装闻名，并在其领域出类拔萃。《Time》和《Look》杂志刊登了她作品的整版彩色页面，《Fashion Service Review》以及众多其他时尚杂志也是如此。申请人为长滩选美比赛的环球小姐制作了大部分礼服。她的客户包括电影女演员和社交界女士。她的客户曾被列入加州最佳着装女性名单。申请人在美国各地多次出席设计和时装秀，讲授面料、设计和技术。她还在加利福尼亚的学院和大学以及家政学院就这些主题讲课。她因出席活动而获得报酬，这些报酬未计入其店铺收入。她作为时装设计师和女装设计师的声誉使她广受欢迎。申请人表示，由于她有时必须离开业务，她迫切需要受益人的服务。她的业务在新地点有所增长，她无法跟上工作需求。 申请人仅能显示1966日历年净利润$280这一事实本身并不妨碍受益人确立她将能够满足“工作邀请”中证明的条件。在仔细考虑上述所有情况后，我们认定申请人关于业务持续增长和利润持续增加的预期是合理的预期，并且已确立她有能力向受益人支付规定工资并满足证明的条件。我们认定受益人符合所寻求的分类资格。上诉将获支持，申请将获批准。 命令：兹命令上诉获支持，申请获批准。