UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 8
DEFINITION OF EMPLOYER
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TABLE OF CONTENTS
I. Regulatory definition of "employer"
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A.
Seasonal employment
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B.
Absence of physical plant, employees
or current business activity
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C.
Plans for business expansion
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D.
Mailing address and telephone
number
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E.
Unsigned service contract
III. Employer must provide documentation reasonably requested by CO
I. Regulatory definition of "employer"
Section 656.50 defines an "employer" as:
- . . . a person, association, firm, or a corporation which currently has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ a full-time worker at a place within the United States or the authorized representative of such a person, association, firm, or corporation. For purposes of this definition an "authorized representative" means an employee of the employer whose position or legal status authorizes the employee to act for the employer in labor certification matters.
The petitioner bears the burden of proving the existence of an employer. See Chapter 7 (Burden of Proof). The petitioner's evidence is weighed according to the principles discussed in Chapter 11 (Evidence).
See also Chapter 28 (Status of Employer) regarding a change in employers.
An entity which offers only seasonal employment is not an "employer" under § 656.50, because the job offer is not full-time. A Taste of India, Inc. , 90-INA-21 (July 12, 1991). For a discussion of seasonal employment, see Chapter 9, II, C (Definition of Employment).
B. Absence of physical plant, employees or current business activity
An entity which has no employees, sales, physical location or imminent plans to begin business, and whose commencement of business activity is wholly contingent upon certification of the alien, is not an "employer" under § 656.50, because there is no offer of full-time work or "location within the United States to which U.S. workers can be referred for employment." Artdesign, Inc. , 89-INA-99 (Dec. 5, 1989); see also Gerata Systems America , 88-INA-344 (Dec. 16, 1988).
C. Plans for business expansion
If an entity proves that it has definite plans for business expansion, and that the expansion will generate full-time, permanent work, then the entity may meet the definition of "employer." Although no such cases have arisen in the context of § 656.50, several business necessity cases suggest this result. See Chapter 32, VI, E (Business Necessity), discussing Remington Products, Inc. , 89-INA-173 (Jan. 9, 1991) ( en banc ); Clifton Warner & Associates , 90-INA-183 (Sept. 9, 1991); Cable Car Photo and Electronics , 90-INA-141 (June 5, 1991); Advanced Digital Corporation , 90-INA-137 (May 21, 1991).
D. Mailing address and telephone number
A mailing address and telephone number do not establish the existence of an "employer" where the petitioner has no employees, sales, physical location or imminent plans to begin business, and the commencement of business activity is wholly contingent upon certification of the alien. Artdesign, Inc. , 89-INA-99 (Dec. 5, 1989); see also Gerata Systems America , 88-INA-344 (Dec. 16, 1988).
An unsigned service contract between the petitioner and a client does not establish the existence of an "employer." Gerata Systems America , 88-INA-344 (Dec. 16, 1988). In Gerata , the service contract would not have been persuasive even if signed, since it did not guarantee full-time, permanent work for the alien.
III. Employer must provide documentation reasonably requested by CO
A petitioner must provide directly relevant and reasonably obtainable documentation requested by a CO. See discussion of Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ), in Chapter 11, II (Evidence). For example, upon a request by the CO, a petitioner must provide a business license or other documentation to prove the existence of an on-going business and job opening. Kogan & Moore Architects, Inc. , 90-INA-466 (May 10, 1991).