A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, November 25, 2015

Appeal Board Denies Labor Application for Director of Closely HeldCorporation

Before a U.S. employer may petition a foreign worker for a permanent position, it must obtain a labor certification from the Labor Department to show that there are no able, willing, and available U.S. employees to take the job. During the labor certification process, the employer has to prove that there exists a bona fide job opportunity open to U.S. workers.

If the foreign worker happens to be the director of the company actively managing the operations, owns 50% of the company, and is also married to other co-owner, can there still be a bona fide job opportunity?  The answer is negative, according to the Board of Alien Labor Certification Appeals (BALCA) in a recent decision.

On 25 September 2015, BALCA issued a decision affirming the denial of certification in a case with the these facts.  In the Matter of Step by Step Day Care LLC, the employer filed a permanent foreign labor application  for the position of “Daycare Center Director”.  The employer is a small closely-held corporation, in which the foreign worker has an ownership interest and is also the wife of the other co-owner.

The Certifying Officer (CO) did not believe that there was a genuine recruitment process given the fact that the beneficiary employee controlled the company and the hiring process as a co-owner and also director of the company.  The employer responded by arguing that, although the foreign worker as the director was usually in charge of the hiring process, she did not participate in this particular recruiting process. Instead, she delegated the responsibility to a subordinate employee.

However, BALCA was not convinced that there was a bona fide job opportunity.  To the extent that the subordinate employee was under the supervision of the foreign employee and got paid by her, the foreign employee was "in a position to control or influence hiring decisions" in the recruiting process. Consequently, any decisions made by the subordinate employee could not have been objective.

In its analysis, BALCA cited to 20 C.F.R. § 657.17(c)(8), which requires the employer to attest that "[t]he job opportunity has been and is clearly open to any U.S. worker" and 20 C.F.R. § 656.17(l), which provides, "[i]f the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers...."

Here, the Board, after considering the totality of the circumstances, held that Step by Step LLC had not met its burden of overcoming the presumption that the foreign worker had influence and control over the job opportunity.  Nor did the employer demonstrate the existence of a job opportunity that was available to all U.S. workers. As such, BALCA affirmed the CO's denial of labor certification.

In general, where the foreign worker has an ownership interest in or a familial relationship with the owners or management of the petitioning company, it would be difficult to prove a bona fide job opportunity unless there exists an independent management board or third party which can make hiring decisions.  

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