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SUN MOON STAR ADVANCED POWER, INC. v. CHAPPELL

September 18, 1990

SUN MOON STAR ADVANCED POWER, INC., SUN MOON STAR GROUP USA, PU DONG WENG, Plaintiffs,
v.
LOIS C. CHAPPELL, director, Western Regional Adjudication Center, U.S. Immigration and Naturalization Service; ALAN NELSON, Commissioner, U.S. Immigration and Naturalization Service, THOMAS W. SIMMONS, Chief, U.S. Immigration and Naturalization Services Administrative Appeals Unit, RICHARD THORNBURGH, Attorney General, Defendants



The opinion of the court was delivered by: SMITH

ORDER

 FERN M. SMITH, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 The plaintiffs seek a judgment reversing a decision by the United States Immigration and Naturalization Service ("INS") denying a Petition for Prospective Immigrant Employee by Sun Moon Star Group, U.S.A. for Mr. Pu-Dong Weng (Mr. Weng). The defendants move to uphold this decision. This permanent immigrant visa would allow Mr. Weng to remain in the United States as a permanent resident alien. The INS' decision is based upon its determination that Mr. Weng's employer, United States-based Sun Moon Star Group U.S.A. is not an affiliate of the Taiwan-based Sun Moon Star Co., Ltd. Taiwan. Under the relevant statute, 8 U.S.C. § 1153(a)(6), Mr. Weng cannot qualify for the intracompany transfer visa unless the United States and Taiwan Companies are determined to be affiliates.

 The issues presented to the Court are: 1) whether the INS abused its discretion when it determined that under the current interpretation of the statute the two companies are not affiliates; and 2) whether the INS' interpretation of the term "affiliate" accurately reflects the intent of Congress in passing the statute.

 II. BACKGROUND

 A. Procedural History

 Plaintiff Pu-Dong Weng is a native and citizen of Taiwan who worked for Sun Moon Star Co., Ltd. in Taiwan between 1977 and 1986. On July 16, 1985 Sun Moon Star Ltd. filed a petition to have an L-1 (intracompany transferee) visa petition approved for Mr. Weng. That petition was approved on November 29, 1985 and was valid until November 28, 1988. Mr. Weng and his family thereafter entered the United States during January 1986 pursuant to his L-1 visa. Mr. Weng thereafter worked for the American group of companies affiliated with Sun Moon Star, Taiwan: American Sun Moon Star, Advanced Power, Inc., and Solstar.

 In June 1987 plaintiff Advanced Power Inc. applied for a sixth preference visa pursuant to section 203(a)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(6) by filing a Form I-140. A.A.R. 329. *fn1" That application was denied by the Western Adjudication Center on January 22, 1988. The denial stated that an affiliate relationship had not been established between the foreign employer, Sun Moon Star Co., Ltd., and the company for which Mr. Weng was then working, American Sun Moon Star. A.A.R. 326.

 On June 23, 1988, the INS, through its Administrative Appeals Unit (AAU), dismissed plaintiffs' appeal from the January 22 denial. A.A.R. 26-28. The decision was based on two grounds. First, the INS found that Mr. Weng would not be employed in a qualifying executive or managerial capacity. Second, the INS found that Sun Moon Star U.S.A. (in 1988 the American affiliates merged into one entity) did not have the requisite affiliate relationship with the foreign employer. Id.

 The plaintiffs then filed an action before this Court which subsequently remanded the matter to the INS after determining that the AAU had not considered all documents submitted by plaintiffs when it reached its decision. A.A.R. 16-17. Based on the new information the AAU concluded in October 1989 that plaintiff Weng would be employed in a qualifying capacity under the regulations. A.A.R. 6. The AAU again held that plaintiffs had not met their burden of showing an affiliate relationship between Sun Moon Star Group USA and Sun Moon Star Co. Ltd., Mr. Weng's previous employer in Taiwan. The AAU stated:

 
The individuals involved in the two entities are not the same group of individuals. Before and after the reorganization, the petitioner's largest shareholder was and is a corporation which is not an individual and which is a separate legal entity from its shareholders. A corporation and its individual shareholders are, as it were, two separate legal entities. [case citations omitted] In addition, the individual owners do not own and control the same proportion of each entity.

 A.A.R. 4-5.

 The present action in this Court followed the October, 1989 decision.

 This court retains jurisdiction under 28 U.S.C. § 1331.

 B. Applicable Regulations

 
an alien who immediately after preceding the time of application into the United States, has been employed continuously for one year by a firm or corporation or other legal ...

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