TESSEL

                                                           Interim Decision #2849




                            MATTER OF TESSEL, INC.
                          In Visa Petition Proceedings
                                     A-23107366
   Decided by the Acting Associate Commissioner of Examinations
                           January 9, 1981
(1) The words "same international corporations and organizations" include "an affiliate
  or subsidiary thereof' within the meaning of 20 C.F.R. 656.10 for Schedule A, Group
  IV, labor certification. Companies are "affiliated" within the meaning of section
  101(a)(15XL) of the Act where there is a high degree of common ownership and
  management between the two companies, either directly or through a third entity.
(2) An unsalaried appointed chairman of a corporation is an employee in a managerial
  or executive position for Schedule A, Group IV, labor certification purposes.
(3) The fact that a petitioner for admission to the United States qualifies for a nonpreference status, does not preclude the petitioner's qualification for a preference
  status.
(4) The corporation is a separate legal entity from its stockholders, able to employ them
  and to file a petition on their behalf.
ON BEHALF OF PETITIONER:       Sam Bernsen, Esquire
                               Fired, Fragomen, Del Rey, Bernsen and
                                 O'Rourke, P.C.
                               100016th Street, N.W., Suite 511
                               Washington, D.C. 20036


  This case is before the Commissioner on certification from the
Regional Commissioner, Western Region. The District Director in San
Diego denied the petition. The Regional Commissioner ordered the
case to be certified to him and in turn certified it to the Commissioner.
  The petitioner is seeking to classify the beneficiary under section
203(a)(6) of the Immigration and Nationality Act, based upon his
occupation as vice-president and export director. The petitioner is
further claiming blanket labor certification under 20 C.F.R.
656.10(d)(2) as Schedule A, Group IV. In order to qualify for this
Schedule A certification the petitioner must demonstrate that the
beneficiary has been employed by the same international corporation
or organization abroad for the year immediately prior to the beneficiary's admission. This employment must have been in a managerial or
Interim Decision #2849

  executive position and it must be intended that he continue in the
 United States in a similar capacity.
     If the beneficiary is found qualified for the blanket labor certification, the only remaining determination is whether he possesses the
 minimum requirements for successful performance of the job duties as
 outlined on the Job Offer for Alien Employment form.
    In his decision the Acting District Director found that the beneficiary was not qualified for blanket labor certification. The basis for this
 finding was a failure to demonstrate that the petitioner and the
 beneficiary's South African company are the same corporation, or that
 either is the subsidiary or affiliate of the other. The Director found
 further that the beneficiary could not qualified for sixth preference
 classification because he is not an employee. The Director found him to
 be an entrepreneur or investor in his relationship to both the United
 States company and the South African company.
    The Regional Comniissioner found that the issue over affiliate or
 subsidiary relationship was not on point. He interpreted the plain
 language of the Labor Department regulation to limit qualification of a
 beneficiary to the situation where he would be continuing employment
 within the same international corporation or organization. The Regional Commissioner further found that there was no evidence in the
 record to establish that the beneficiary was ever employed by the
 South African company in a managerial or executive position.
    The Attorney or record states in his brief that the blanket labor
 certification for Group IV encompasses more than the "same international corporation" concept of the Regional Commissioner. He further
 states that the required relationship under both the intracompany
nonimmigrant definition and the Schedule A provision is established
through the common ownership and control (management) or the
companies involved.
    The interpretation of the Labor Department regulation used by the
Regional Commissioner is inaccurate_ The Department's handbook on
20 C.F.R. 656.10 on page 656-A-21 states: "The words 'same international corporations or organizations' used in the regulations are intended to include 'an affiliate or subsidiary thereof' as provided in the
Act"
   The Regiobal Commissioner's second reason for denial has been
overcome through the submission of a document which indicates that
the beneficiary was appOinted chairman of the South African company
on March 1, 1976. While he does not receive a salary as chairman he is
nonetheless an employee of the company.
   The District Director's finding that the beneficiary fails to qualify
for the preference sought because he is a business investor and would
more properly be classified as such under nonpreference is without
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basis in law. The fact that one qualified for a particular status does not
preclude qualifying for another status.
   The Director's holding (in which the Regional Commissioner also
concurs) that an employer/employee relationship cannot exist
between the petitioner and beneficiary because they are one and the
same, fails to consider the precedent established in Matter of M, 

 (BIA 1958; A.G. 1958), wherein it was held that a sixthpreference petition could be approved where the petitioner was a
corporation seeking the employment of even its sole stockholder. The
corporation is a separate legal entity from its stockholders and able to
file a petition and employ them.
   The question of relationship between the two companies is the most
crucial matter involved in the instant case. The beneficiary owns 93%
of the South African company and is its chairman. He owns 60% of the
petitioner and will be a manager of the corporation (Vice-President
and Export Director). It has previously been held that mere stock
ownership and an informal arrangement to do favors between companies does not constitute the requisite relationship for qualification
under section 101(a)(15)(L) of the Act, (Matter of Del Mar Ben, 

 (R.C. 1974)). But, Del Mar Ben is distinguishable because the
stock ownership was minimal and there was no degree of control or
joint management. The instant case has a high percentage of common
ownership and common management, vesting effective control over
both companies in their owner/manager. Where there is a high
percentage of ownership and common management between two companies, either directly or through a third entity, those companies are
"affiliated" within the meaning of that term as used in section
101(u)(15)(L) of the Act.
  Therefore, the instant companies are affiliated. The beneficiary has
been employed for the preceding year as an executive or manager of
the foreign company and will be so employed by the United States
company. The beneficiary is qualified to be an "L-1," and, therefore,
does have a Schedule A, Group IV, labor certification. The following
order shall be entered.
  IT IS ORDERED that the visa petition to classify the beneficiary
under section 203(a)(6) be approved.




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