ALLAN GEE

Interim Decision #2772




                         MATTER OF ALLAN GEE, INC.
                          In Visa Petition Proceedings

                                     A-22858693

       Decided by Acting Regional Conimissioner June 27, 1979

(1) Where a petitioner corporation has been duly incorporated under the laws of a State,
  it is a separate legal entity existing independently of its stockholder. Therefore, that
  sole stockholder may be the beneficiary of a petition filed by the corporation to accord
  preference classification under section 203(a)(6) of the Immigration and Nationality
  Act, 8 U.S.C. 1153(a)(6).
(2) Under theme circumstances, the beneficiary will not be regarded as his own petitioner/employer for purposes of 20 C.F.R. 656.50 or section 203(a)(6).

ON BEHALF OF Pgrrnonns: Richard J. Pettier, Esquire
                               9952 Santa Monica Boulevard
                               Beverly Hills, California 90212



  The petition was denied by the District Director, Houston, Texas,
and is now considered on certification.
  The petitioner is engaged in the business of retailing high fashion
clothing for men. The petitioner is a Texas corporation presently
employing six persons. The petitioner seeks the services of the beneficiary as a corporate executive to control and manage the petitioner's
business in Houston, Texas.
 The beneficiary is a native and citizen of South Africa. A nonimmigrant petition to classify the beneficiary as a nonimmigrant intra-company transferee under section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. 1101(a)(15)(L), was approved by the
District Director at Houston, Texas, on November 9, 1977. His nonimmigrant classification was simultaneously changed from visitor for
business to intra-company transferee with an authorized stay to
November 8, 1978. The petition presently under consideration was filed
on May 25, 1978.
  The District Director denied the petition and certified his decision to
me. It was held that the petitioner, Allan Gee, Inc., is owned in its
entirety by the beneficiary and therefore, a bona fide employer-employee relationship between Allan Gee, Inc. and the beneficiary does
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not exist. In arriving at this conclusion, Department of Labor regulations, 20 C.F.R. 656.50(E)—Definitions, were relied on. The pertinent
portion of these regulations read as follows:
  "20 C.F.R. 656.50(E) Definitions, states (1) "Employer" means a person, association,
                      —


  firm or a corporation which currently has a location within the United States to which
  U.S. workers may be referred for employment, and which proposes to employ a full
  time worker at a place within the United States or the authorized representative of
  such a person, association, firm or corporation. For the purpose of this definition an
  "authorized representative" means an employee of the employer whose position or
  legal status authorizes the employee to act for the employer in labor certification
  matters. (2) "Employment" means permanent full time work by an employee for an
  employer other than oneself. For the purposes of this definition an investor is not an
  employee."
  The District Director additionally cited a general American Jurisprudence definition:
 "53 Am. Jr. 2d, Master and Servant, S.t While it is said that at common law there are
 four elements which are considered upon the question whether the relationship of
 master and servant exist-namely, the selection and engagement of the servant, the
 payment of wages, the power of diemiseal, and tho power of control of the servant's
 conduct; the really essential element of the relationship is the right to order and
 control another, the servant, in the performance of work by the latter, and the right to
 direct the manner in which the work shall be done. It is, moreover, essential that the
 master shall have control and direction not only of the employment to which the
 contract relates, but also of all of its detail and the method of performing the work....
 In view of some courts, it is also necessary that this work be performed on the business
 of the master or for his benefit."
 "In determining whether the right of control exists, possession of either power to
 employ or the power to discharge is regarded as very strong evidence of the existence
 of the master and servant relationship, whereas the payment of wages is the least
 important factor."
   On appeal, counsel argues that the District Director's decision completely disregards the very essence of corporate law, namely, that the
corporation itself is an entity separate and apart from the
shareholders which control it. He adds that this concept is basic to
corporation law throughout the various states and has been repeatedly
reaffirmed by the United States Supreme Court. Old Dominion Copper
Mining & S. Co. v. Lewisohn, 210 "U.S. 206 (1908); Cori v. Ash, 

(1975). These arguments have merit. In the Matter of M—, 

 (BIA 1958, A.G. 1958), the Board of Immigration Appeals held, "...
It is an elementary rule that a corporation is a legal entity separate
and distinct from its stockholders, and this is true even though one
person may own all or nearly all of the capital stock (Dalton v. Bowers,

 (1932); Cannon Manufacturing Co. v. Cudahy
Packing Co., 

 (1925); Haese v. A.R. Demory Investment Co.,

 (9 Cir. 1930), cert. denied 

 (1930))." The fact that
one person owns a majority or all of the stock in a corporation, does
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not, of itself, make him liable for the debts of the corporation, and this
rule applies even where an individual incorporated his business for the
sole purpose of escaping individual liability for corporation debts. 18
C.J.S. Corporations 3581.... "The cases in which the corporate entity
is to be disregarded are principally those in which fraud or illegal acts
are attempted by means of the corporate device."
   Counsel, in his brief, states, "It is manifestly evident that the
corporation has entered into an employment agreement with the beneficiary, Allan Goldman, and that this employment agreement has been
fully performed by the beneficiary and is continuing to be performed
by said beneficiary."
   It is noted that the viability of the petitioning firm was not challenged or discussed in the District Director's denial. The record clearly
reflects that the petitioning corporation has established a successful
retail business in the United States. The corporation is duly incorporated under the laws of the state of Texas and as such is a legal
entity distinct from its sole stockholder. It is, therefore, held that the
petitioning corporation may properly petition for the beneficiary's
services.
  The record does not reflect that the District Director considered the
beneficiary's eligibility for precertification under Schedule A, Group
IV, 20 C.F_R. 656, and the record will be remanded to afford the District
Director to make such a determination. If the decision of the District
Director is adverse to the petitioner, the decision will be certified to the
Regional Commissioner for review.
  ORDER The record is remanded to the District Director for
further proceedings consistent with the foregoing opinion and the
entry of a new decision.
  FURTHER ORDER, In the event of a decision that is adverse to
the petitioner, the District Director shall certify his decision to the
Regional Commissioner for review.




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