A-8898254
Decided by District Director March 6, 1957 Approved by Central Office March 28, 1957
Change of nonimmigrant status to treaty trader under section 101 (a) (15) (E) (i) of the 1952 act and 22 CFR 41.71 — Nationality of employer corporation is determined by nationality of majority of stockholders.
(1) A nonimmigrant in the United States who applies for a change of status to treaty trader must establish his eligibility therefor under the terms of section 101 (a) (15) (E) (i) of the act as well as under 22 CFR 41.71.
(2) The requirement that the applicant be employed by a foreign person or corporation having his nationality is satisfied when it is shown that 51% or more of the stock of the employer corporation is owned by persons of applicant's nationality. Such a firm is a "foreign corporation" within the meaning of the regulation, without regard to whether it was incorporated abroad or in the United States.
APPLICATION:
Change of nonimmigrant status under section 248 of the Immigration and Nationality Act from student under section 101 (a) (15) (F) to treaty trader under section 101 (a) (15) (E) of the act.
BEFORE THE DISTRICT DIRECTOR
(March 6, 1957)
Discussion: The applicant is a 27-year-old single male, a native of Japan of Japanese nationality, who was admitted to the United States on July 9, 1952, at the port of Blaine, Washington, as a student under section 4 (e) of the Immigration Act of 1924. Subsequent to the enactment of the Immigration and Nationality Act of 1952 and in connection with his application for an extension of temporary stay, his student status continued under section 101 (a) (15) (F) of the Immigration and Nationality Act. He maintained such student status until June 19, 1956, when he filed the instant application.
Applicant is employed by the Wrangell Lumber Company, a corporation organized and existing under the laws of the State of Washington which will hereinafter be referred to as the Washington Corporation. All of the stock of the Washington Corporation is owned by the Alaska Pulp Company, Inc., a corporation organized and existing under the laws of the Territory of Alaska and which hereinafter will be referred to as the Alaska Corporation. The Alaska Corporation has 12,000 shares of stock outstanding of which 5 are owned by the officers of the Alaska Corporation, the remaining 11,995 shares being owned by the Alaska Pulp Company, Ltd., a corporation organized and existing under the laws of Japan and which will hereinafter be referred to as the Japan Corporation. All of the 750,000 shares of the Japan Corporation are owned by nationals of Japan.
Applicant's employer, the Washington Corporation, is engaged primarily in the sawmilling of Alaska timber and in the marketing of the lumber thus produced in markets located in Japan, Europe, the United States, and Alaska. The annual gross volume of its business is approximately $1,200,000 of which a little over 50 per cent represents its business with Japan, 10 per cent with the United Kingdom and France, and the remainder with markets in Alaska and the United States.
The applicant is to be employed as Assistant Manager of the Washington Corporation, whose principal office is located in Seattle, and will assist in the accounting and office routine of the business. The employer asserts that the applicant's Japanese upbringing and background, his ability to speak the Japanese and English languages, and his university work in economics and business are special qualifications which make his services essential to the efficient operations of the employer's enterprise.
To qualify as a nonimmigrant treaty trader under the statute, the applicant must establish that he is entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national solely to carry on substantial trade, principally between the United States and the foreign state of which he is a national, or solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital. In the instant case the applicant has not invested and is not in the process of investing any capital in the business of his employer.
In addition, the applicable regulation ( 22 CFR 41.71) further provides that the applicant seeking treaty trader status must establish that he intends in good faith, and will be able, to depart from the United States upon the termination of his status and that, if employed, he is employed or will be employed by a foreign person or organization of the same nationality as the alien, and will be engaged in duties of a supervisory or executive character, or if he is or will be employed in a minor capacity, he has special qualifications which make his services essential to the efficient operations of the employer's enterprise.
A treaty of commerce and navigation exists between Japan and the United States. The facts of record establish that the applicant is a national of Japan who seeks to be in the United States solely for the purpose of employment with a firm which carries on substantial trade principally between the United States and the foreign state of which he is a national under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and such foreign state. The applicant's employer is engaged in substantial trade principally between Japan and the United States. The applicant has satisfactorily established that he intends in good faith and will be able to depart from the United States upon the termination of his status. His position as assistant manager adequately establishes that he will be engaged in duties of a supervisory character. His Japanese background and his ability to speak the Japanese and English languages are special qualifications which make his services essential to the efficient operations of the employer's enterprise. The applicant is not within any of the excluding provisions of section 212 of the act or of any other provision of law.
The evidence of record, therefore, adequately establishes the applicant's eligibility for the status of treaty trader provided that it can be found that he is employed by a foreign person or organization having his nationality. It becomes necessary, therefore, to determine whether the Washington corporation is a qualified employer within the meaning of the regulation cited above.
The requirement set forth above has been in existence since the 1932 amendment to the Immigration Act of 1924, appearing previously in substantially the same wording in 8 CFR 121.1 Since at least 1949 this Service and the Department of State have held that a "foreign" firm within the meaning of this provision is a firm which possesses the nationality of the alien desiring to qualify as a treaty trader under the provisions of the applicable commercial treaty; that the fact that a firm is incorporated under the laws of a State of the United States does not necessarily determine that it is not a foreign firm; and that the nationality of such a corporation may be determined for this purpose by the nationality of those persons who own the principal amount ( i.e., more than 51 percent) of the stock of that corporation.
These rulings establish the view that for treaty trader purposes at least, the inanimate corporate entity possesses no nationality of its own but assumes the nationality of the people owning 51 percent of its stock. There being no substantial change in language between the present statute and Regulations as compared with the preceding statute and regulations on the same subject, the rulings and principles previously enunciated and which are presumed to have been known to the Congress must be deemed to be presently applicable. Accordingly, in the instant case we are required to trace back to the persons holding the principal amount of stock of the Japan corporation. Since all of the 750,000 shares of the Japan corporation are held by nationals of Japan, the Japan, the Alaska, and the Washington corporations are all deemed to possess Japanese nationality and deemed to be "foreign" corporations within the meaning of the regulation. Since the applicant and his "foreign" employer have the same nationality, and all other requirements having been met, the instant application is granted.
Order: It is ordered that the application for a change of nonimmigrant status from student under section 101 (a) (15) (F) to treaty trader under section 101 (a) (15) (E) of the Immigration and Nationality Act be granted.
(March 28, 1957)
The decision in this case comes forward pursuant to certification.
The decision of the district director is hereby approved.