The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Forman.”
Upon evaluating an Employer’s Application for Permanent Labor Certification which provided that the employer was a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or …there is a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien, the CO issued a “Request for Additional Information.” In 30 days, he needed the following evidence: (1) Proof of a federal employer identification number; (2) Proof that the company was a business entity; and (3) Proof of the physical location of the company. It appears from the record that most of the information requested by the CO already accompanied the Application.
A few months later, the CO delivered a “Notice of Supervised Recruitment.” The Employer was required, in 30 days, to send a draft job advertisement, corporate financial & structure documentation as well as any family relationship the Alien has to the Employer. In a timely fashion, the Employer responded by providing their business license, operating agreement, IRS FEIN number, organization certificate from the Virginia State Corporation Commission, and a letter from the Company’s owner describing his relationship to the Alien.
After reviewing the data, the CO did not conduct any additional supervised recruitment and denied the Labor Application without issuing a request for proof of the Employer’s recruitment efforts. He believed the position “was not open and available to any US worker”. Since the foreign worker is the brother of the owner, the Alien has a benefit in the company and influence/control over the hiring practices. The CO stated the Employer violated PERM regulation 20 CFR 656.10(c)(8).
The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that they supplied documents to prove that the Alien has no ownership interest in the company. In addition, they noted that the CO did not request to view any recruitment documentation on the position so he could not determine whether or not the position was available to US workers.
Upon reconsideration of the employer’s arguments, the CO forwarded the case to BALCA for further examination. In a letter to the Board, he cited the foreign worker was already employed by the company in the same position for three years before the new company was established. The CO also noted the Alien is the supervisor for the other 4 employees in the company and only reports to the Owner (his brother).
When determining whether a bona fide job opportunity exists, the Board must consider the totality of the circumstances, considering, among other factors, whether the alien:
- Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
- Is related to the corporate directors, officers or employees;
- Was an incorporator or founder of the company;
- Has an ownership interest in the company;
- Is involved in the management of the company;
- Is on the board of directors;
- Is one of a small number of employees;
- Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
- Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.
*No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling.
After BALCA’s examination of the case, BALCA reversed the CO’s decision. The Board believed that the CO should not have denied certification. BALCA mentioned that the Employer provided enough evidence that the Alien did not have ownership interest in the company. The Board also stated the CO failed to request recruitment documentation for the job opening and he “abandoned the supervised recruitment process without warning or notice or to the Employer.”