Matter of Tessel, Inc.

Interim Decision #2849

临时决定第2849号

In Visa Petition Proceedings

在签证申请程序中

A-23107366

A-23107366

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 benefici- ary's admission. This employment must have been in a managerial or

本案因西部地区区域专员认证而提交至专员。圣地亚哥地区主任拒绝了该申请。区域专员命令将案件认证至其本人，随后又认证至专员。申请人寻求根据《移民与国籍法》第203(a)(6)条，基于受益人担任副总裁兼出口总监的职业对其进行分类。申请人还根据20 C.F.R. 656.10(d)(2)作为A类表第四组主张一揽子劳工证。为符合该A类表认证资格，申请人必须证明受益人在受益人入境前紧接的一年内受雇于同一国际公司或组织。该雇佣必须担任管理或

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 certifica- tion, 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 benefici- ary 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 Re- gional 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 interna- tional 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 interna- tional corporations or organizations' used in the regulations are in- tended 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

行政职位，并且必须意图使其在美国继续担任类似职务。 若认定受益人符合一揽子劳工证资格，则唯一剩余的裁定是其是否具备《外籍人士就业工作邀请》表格所列工作职责成功履行所需的最低要求。 代理地区主任在其决定中认定受益人不符合一揽子劳工证资格。该认定的依据是未能证明申请人与受益人的南非公司为同一公司，或其中任何一方为另一方的子公司或关联公司。主任还认定受益人不能符合第六优先分类资格，因为其不是雇员。主任认定其相对于美国公司和南非公司均为企业家或投资者。 区域专员认定关联公司或子公司关系问题并非要点。其解释劳工部法规的平实语言，将受益人资格限于其将在同一国际公司或组织内继续就业的情形。区域专员还认定，记录中没有证据表明受益人曾受雇于南非公司担任管理或行政职位。 记录在案的律师在其简报中称，第四组一揽子劳工证涵盖的范围超出区域专员所理解的“同一国际公司”概念。其还称，公司内部非移民定义和A类表条款所要求的关系，均通过所涉公司的共同所有权和控制（管理）而确立。 区域专员对劳工部法规的解释不准确。劳工部关于20 C.F.R. 656.10的手册第656-A-21页规定：“法规中使用的‘同一国际公司或组织’一词，意图包括该法所规定的‘其关联公司或子公司’。” 区域专员拒绝的第二个理由已通过提交文件克服，该文件表明受益人于1976年3月1日被任命为南非公司董事长。虽然其作为董事长不领取薪水，但其仍为该公司的雇员。 地区主任认定受益人因是商业投资者而不符合所寻求优先分类资格、更应归入非优先分类，该认定没有

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 sixth- preference 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 compa- nies 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 com- panies, 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.

法律依据。某人符合某一特定身份资格这一事实，并不排除其符合另一身份资格。 主任的裁定（区域专员亦同意）认为申请人与受益人因系同一人而不能存在雇主/雇员关系，该裁定未考虑Matter of M, 8 I&N Dec. 24 (BIA 1958; A.G. 1958)所确立的先例，其中认定即使申请人是寻求雇用其唯一股东的公司，第六优先申请也可获批准。公司是与其股东分离的法律实体，能够提交申请并雇用股东。 两家公司之间的关系问题是本案所涉最关键事项。受益人拥有南非公司93%的股份并担任其董事长。其拥有申请人60%的股份，并将担任公司经理（副总裁兼出口总监）。此前已认定，仅凭股票所有权和公司之间给予照顾的非正式安排，不构成该法第101(a)(15)(L)条所要求的资格关系（Matter of Del Mar Ben, 15 I&N Dec. 5 (R.C. 1974)）。但Del Mar Ben案可作区分，因为该案股票所有权极少，且不存在任何程度的控制或共同管理。本案具有高比例的共同所有权和共同管理，将两家公司的有效控制权赋予其所有者/管理者。若两家公司之间直接或通过第三方实体存在高比例所有权和共同管理，则这些公司属于该法第101(a)(15)(L)条所用“关联”一词的含义范围。 因此，本案公司为关联公司。受益人在前一年受雇为外国公司的行政人员或管理者，并将受美国公司如此雇用。受益人符合“L-1”资格，因此确实拥有A类表第四组劳工证。应作出以下命令。 兹命令：根据第203(a)(6)条对受益人进行分类的签证申请予以批准。