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 

5 
Interim Decision #2303 

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 

6 
Interim Decision #2303 

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 

7 
Interim Decision #2303 

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. 

8