Interim Decision #2303
MATTER OF DEL MAR BEN, INC.
In Visa Petition Proceedings
BUF—N-7984
Decided by Regional Comnissioner July 5, 1974
Mere ownership by the petitioning American corporation of stock in a Japanese corporation and an informal cooperative arrangement between the presidents of the two
corporations to exchange favors, does not render petitioning corporation an affiliate of
the Japanese corporation within the contemplation of section 101(a)(15)(L) of the Immigration and Nationality Act, as amended, for the purpose of according beneficiary, an
employee of the Japanese firm, classification as an intra-company transferee.
IN BEHALF OF PETITIONER: Seymour L. Schuller, Esquire
One Niagara Square
Buffalo, New York 14202
This matter is before, the Regional Commissioner on appeal from the
denial of the petition to classify the beneficiary as a nonimmigrant
intra-company transferee under. section 101(a)(15)(L) of the Immigration and Nationality Act, as amended.. .
The petitioner, since 1971, has operated the Arigato Japanese Steak
House in Clarence, New York. This restaurant is described as an
authentic Japanese-style restaurant where the preparation and cooking
of the food are done by native Japanese chefs in the presence of the
patrons on portable hibachi-style equipment. The artistry and showmanship of the chef are an integral part of the dining experience. The
petitioner has acquired property and now seeks to establish another
Arigato restaurant in Brighton, New York. It proposes to employ about
70 persons, including about six United States citizens or residents for
each Japanese chef.
The petitioner seeks the services of the beneficiary as one of the, chefs
in the new venture. It is asserted that for maximum Japanese authenticity and flavor, recently arrived nonassimilated Japanese chefs are
necessary to describe their experiences and life style. The beneficiary is
said to have been employed as a chef for the past four years by a
Japanese restaurant concern known as Hi Cock, Inc., of Osaka. Hi Cock
operates about 60 restaurants in Japan. The petitioner claims eligibility
to receive the •eneficiary as an intra-company transferee based on the
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assertion that Del Mar Ben, Inc., is an "affiliate" of Hi Cock, Inc. This
claim to affiliation is based on a personal understanding between Mr.
Dale Del Bello, president of Del Mar Ben, and Mr. Hatsuzo Ogawa,
president of Eli Cock, and the fact that the petitioning corporation owns
4,000 shares of stock of Hi Cock which is said to be equal to the holdings
of the largest single individual stockholder.
An intra-company transferee is defined by section 101(a)(15)(L) of the
Act as follows:
(L) an alien who, immediately preceding the time of his application for admission
into the United States, has been employed continuously for one year by a firm or
corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to
enter the United States temporarily in order to continue to render his services to the
same employer or a subsidiary or affiliate thereof in a capacity that is managerial,
executive, or involves specialized knowledge
Although the record contains no evidence of the qualifications or
experience of the beneficiary nor of the alleged holding of 4,000 Hi Cock
shares by the petitioner, the district director has conceded arguendo the
truth of these allegations and has denied the petition solely on the basis
,
that the petitioner has failed to establish that it is an affiliate of the
Japanese corporation.
We are told that the arrangement between the petitioner and Hi Cock
includes the assistance of Hi Cock in securing for the petitioner certain
Japanese supplies such as chopsticks, saki, rice, china bowls, and
kimonos. The petitioner, in return, has agreed to acquire for Hi Cock
certain supplies for use in Japan by Hi Cock which seeks to establish
pizza houses there. There is apparently no formal or binding agreement
or contract between the two concerns but only an informal arrangement
by the heads of the firms who happen to be personal friends or acquaintances.
In a comprehensive and well-prepared brief by counsel the status of
"affiliate" as claimed by the petitioner is urged primarily on the fact that
the petitioner owns 4,000 shares of Hi Cock stock. He notes that neither
Congress nor precedent administrative decisions have clearly spelled
out the definition of "affiliate" as contemplated by the statute under
consideration. Thus, he reasons we should use the common definition as
found in the Random House Dictionary of the English Language from
which he quotes in pertinent part the definition of "affiliate" as "a
business concern owned or controlled in whole or in part by another
concern." He goes on to quote the definition of a "subsidiary company"
as a "company whose controlling interest is owned by another company." (His emphasis added.) Thus he reasons:
It is clear that when Congress referred to "the same employer or a subsidiary or an
affiliate thereof," it had in mind both the situation where the parent had control over the
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associated company, i.e., a subsidiary, and the situation where there is only partial
ownership, i.e., an affiliate.
Counsel also cites a recent New York court case, Standard Marine
Insurance Co. v. Federal Insurance Co., 39 A.D. 2d 444,
336 N.Y.S. 2d
692, 694 (1st Dept. 1972), in an effort to show that an affiliate need not
be controlled but merely partially owned by another concern. He
further distinguishes the matter at hand from the Matter of Schick, 131.
& N. Dec. 647, which held that the United States firm in that case was
not an affiliate of the foreign company.
Finally, counsel has submitted a copy of an unpublished decision by
the Regional Commissioner of the Northwest Region of this Service
finding that the status of "affiliate" existed between two firms based on
what counsel contends is a far less concrete relationship than exists in
the matter before us. We note, however, that the two firms in the
Northwest Region's case, while not directly linked with each other,
were both owned by the same giant American conglomerate. In any
event, we need not accept nor reject the rationale used by the Northwest Regional Commissioner in that unpublished decision.
In the matter at hand counsel asks us to consider Del Mar Ben, Inc.,
an affiliate of HI Cock, Inc., because Del Mar Ben owns Hi Cock stock.
Following this rationale we might be asked to consider Del Mar Ben an
affiliate of General Motors Corporation if Del Mar Ben purchased General Motors stock. This approach is patently fallacious. Beyond the fact
of the stock ownership, the only connection between these two firms is
an informal cooperative arrangement between the two presidents to
exchange favors. We further note that Hi Coek, Inc., has made no
financial investment in Del Mar Ben, Inc. Under the circumstances, we
find that the petitioner has failed to establish that it is an affiliate of Hi
Cock, Inc., as contemplated by the statute.
It should be pointed out that the beneficiary could probably qualify for
sixth preference immigrant -classification upon certification by the Department of Labor based on a bona fide job offer by the petitioner. It has
been indicated that the petitioner feels that it would exercise greater
control over the alien if he were admitted in a nonimmigrant status
rather than as an immigrant where he would be free to seek other
employment at some future time after his arrival here. It has been
suggested that this would be beneficial to both the petitioner and the
United States. This proposition would represent a subversion of the
intent of the Congress as reflected by the statute.
In conclusion, upon careful consideration of all the evidence before us
including representations made on appeal we find that the petitioner has
failed to establish that it is an affiliate of the foreign concern involved
and has thus failed to establish that the beneficiary is eligible for the
benefit which this petition seeks to confer upon him. Accordingly, we
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find that the decision of the district director was proper and the appeal
will be dismissed.
It is ordered that the appeal be and is hereby dismissed.
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