H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Chief Executive Officer.”
An Audit Notification was issued by the CO on April 28, 2006 requesting documents showing the company’s finances, recruitments and corporate structure due to the fact that the application showed the employer is “a closely held corporation, partnership or sole proprietorship.” The Employer submitted its Articles of Incorporation, along with other requested documentation on May 23, 2006. The CO denied the certification on November 9, 2007 because the documents submitted by the employer were not adequate and because it was a close partnership where aliens have influence and control, therefore job opportunities were not available to US workers. The CO cited 20 C.F.R. §656.10(c)(8) which states that job opportunities must clearly be open to all US workers. The Employer responded by submitting a request for review arguing that according the Department of Labor a single factor doesn’t control the authenticity of a job opportunity where an alien has influence. The employer went on to argue that the alien was not involved in the recruitment process, holds no management position, and is neither an incorporator nor a founder. On March 26, 2009 the CO filed a letter of reconsideration finding the employer still did not prove the job was open to all US workers and still believed the alien had a significant role in the management of the company.
PERM regulation 20 C.F.R §656.10(c)(8) controls and provides that a job opportunity must be clearly open to any US worker. In the event of an audit of a closely held company where an alien holds an ownership interest the employer must be able to prove the existence of a legitimate job opportunity for all US workers. In the instant case, the employer failed to demonstrate the existence “of a bona fide job opportunity ….available all US workers.” The employer did not overcome the presumption that the alien has power and control in the company as well as over the job opportunity.
Accordingly, the board affirmed the decision of the CO in denying labor certification.
In the Matter of Intervid, Inc.