DEL MAR BEN

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 corpora-

tion 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 Immi-

gration 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 Immigra-

tion 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 show-

manship 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 authentic-

ity 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

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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 acquain-

tances.

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 com-

pany." (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

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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 North-

west 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 Gen-

eral 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 De-

partment 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

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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.

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