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.

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 “Assistant Manager.”

The Employer originally stated on the ETA Form 9098 that the position required a high school education and 24 months of experience in the job but when the alien filed his application he only had a high school education. The application was returned to the Employer by the CO based on the grounds that the Employer failed to indicate the year the education was completed. When the form was returned, it showed the alien did not have any education but on the Form 9098 it still stated that high school completion was a requirement for the job. On the grounds that the alien did not meet the job qualifications of Form 9098 the CO denied the application. A request for reconsideration of the application was submitted; the CO found that the grounds for denial were valid. Since the education level had been changed on the Form 9098, the alien no longer had the required experience for the job.

PERM Regulation 20 C.F.R. § 656. 21 (b)(5) controls and provides that an “employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered.” When the form was resubmitted showing the alien with no education and the job requiring a high school degree, the CO found that the alien was unqualified for the job. The CO made the decision to deny based on the Form 9098 not based on documents accompanying the form.