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 intracompany 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, 422 U.S. 66 

(1975). These arguments have merit. In the Matter of M—, 8 I&N Dec. 

24 (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, 

287 U.S. 404, 408, 410 (1932); Cannon Manufacturing Co. v. Cudahy 

Packing Co., 267 U.S. 333 (1925); Haese v. A.R. Demory Investment Co., 

38 F.2d 232 (9 Cir. 1930), cert. denied 282 U.S. 841 (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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