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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Interim Decision #2849 

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, 8 I&N 

Dec. 24 (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, 15 I&N 

Dec. 5 (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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