UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 9
DEFINITION OF EMPLOYMENT
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Check Supplement .
TABLE OF CONTENTS
II. Requirement that position be permanent and full-time
-
A.
Evidentiary and procedural
matters
-
B.
Placement agencies, consultants and
contractors as employers
-
C.
Seasonal employment
-
D.
Part-time employment
III. Employer-employee relationship; investors as employees
-
A.
Prohibition of self-employment
-
B.
Employer's burden of proof
-
C.
CO's reasonable request for
information
-
D.
Obligation of CO to notify employer
of grounds for challenge; appropriateness of remand
-
E.
Illustrative cases
According to § 656.50 of the regulations:
- "Employment" means permanent full-time work by an employee for an employer other than oneself. For purposes of this definition an investor is not an employee.
20 C.F.R. § 656.50.
II. Requirement that position be permanent and full-time
A. Evidentiary and procedural matters
The employer bears the burden of proving that a position is permanent and full-time. If the employer's own evidence does not show that a position is permanent and full-time, certification may be denied. Gerata Systems America, Inc. , 88-INA-344 (Dec. 16, 1988) (employer submitted contracts with third parties lacking essential elements to prove permanent and full-time employment).
2. CO's reasonable request for information
If a CO reasonably requests specific information to aid in the determination of whether a position is permanent and full-time, the employer must provide it. Collectors International, Ltd. , 89-INA-133 (Dec. 14, 1989) (existence of permanent, full-time employment not shown where the CO requested evidence of the source of the employer's funds and income in the last year, and the employer failed to produce it).
3. Requirement that CO's finding not be speculative
A CO's finding that a job is not full-time or permanent must have some foundation. Han Yang Sewing Machine Co. , 88-INA-207 (June 29, 1989) (denial reversed because it was based on a speculative assertion that the employer's business could not support a full-time market analyst). A denial which is based on vague and unsupported comparisons to jobs with other employers will not be affirmed. Central Korean Evangelical Church , 88-INA-336 (Nov. 22, 1988).
Where the employer, CO and state job service exhibited significant confusion as to whether a job was appropriately designated as temporary or permanent, and where prior to Board review the employer and CO agreed that the position should be treated as permanent, the Board remanded the case to the CO and the employer was permitted to retain its original prior date as a matter of equity. Independent Land Development , 90-INA-185 (Apr. 25, 1990).
B. Placement agencies, consultants and contractors as employers
An arrangement where the employer is a placement and consultant company for computer professionals which seeks to place the alien in another company, which would then retain the right to hire and fire the alien, is not objectionable as long as the employment is permanent and the employer guarantees the alien's wage. International Contractors, Inc. , 89-INA-278 (June 13, 1990).
A seasonal job may not constitute full-time permanent employment. A Taste of India, Inc. , 90-INA-21 (July 12, 1991) (restaurant closed during winter). However, if a job's duties vary with the seasons, but employment continues throughout the year, the job may be considered full-time and permanent. Gary M. Burke , 88-INA-547 (June 20, 1991) (vacated June 20, 1991 upon granting of en banc review; appeal dismissed on Sept. 23, 1991 on motion of withdrawal by employer) (remanded for re-recruitment with accurate description of job duties).
Where the alien has worked part-time for the employer performing the same duties as listed for the petitioned position, it may be difficult for the employer to prove its need for a full-time employee. In Howard Hewett , 88-INA-371 (June 12, 1989), an employer failed to demonstrate the existence of full-time work where the alien had worked for the employer only eight hours per week for the last three years. Similarly, in Randy Auerback , 88-INA-103 (Apr. 7, 1988), an employer failed to document the need for a full-time houseworker where the alien had performed the same job duties for the employer on a part-time basis and the employer submitted no documentation to substantiate his allegation of additional duties. See Joan Bensinger , 89-INA-52 (Oct. 30, 1989).
III. Employer-employee relationship; investors as employees
A. Prohibition of self-employment
When an alien for whom certification is sought has an investment interest in the employer, the question of whether an employer-employee relationship exists may arise. It is not enough for the position be full-time and permanent: pursuant to the definition of employment in § 656.50, the alien must work for an employer other than himself. If the position for which certification is sought constitutes nothing more than self-employment, it does not constitute genuine "employment" under the regulations, and labor certification is barred per se. Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) ( en banc ), citing Hall v. McLaughlin , 864 F.2d 868, 870 (D.C. Cir. 1989); Edelweiss Manufacturing Company, Inc. , 87-INA-562 (Mar. 15, 1988) ( en banc ).
To meet the burden of proving that the employment of an alien is not tantamount to self-employment, the employer must establish that it is genuinely independent and vital apart from any financial or other contribution by the alien. Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) ( en banc ). The alien's investment status and other factors relevant to the question of self-employment should be examined. Id .
Even if the employer establishes that employment of the alien is not tantamount to self-employment, and thus not barred per se, § 656.20(c)(8) provides the additional requirement that the employer establish that it is providing a bona fide job opportunity. Id . For detailed treatment of this issue, see Chapter 3 (Alien Ownership and Control).
C. CO's reasonable request for information
The employer must provide information about the employer-employee relationship if it is requested by the CO. Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) ( en banc ).
D. Obligation of CO to notify employer of grounds for challenge; appropriateness of remand
The CO must give the employer notice of the grounds on which he is challenging the existence of an employer-employee relationship. Patisserie Suisse, Inc. , 90-INA-131 (Oct. 16, 1991). In Patisserie Suisse, Inc. , a panel refused to expand its review beyond the CO's narrow and insufficient ground for finding that no employer-employee relationship existed; that is, that the alien's family owned a majority of stock. However, since the record contained other evidence which appeared to support the CO's finding, the panel remanded the case for the CO to issue an NOF clearly stating all of the possible grounds for finding that no employer-employee relationship existed.
Cases will not always be remanded to give the CO an opportunity to clarify or expand the challenge to the existence of an employer-employee relationship. See Altobeli's Fine Italian Cuisine , 90-INA-130 (Oct. 16, 1991) (certification granted where the CO's narrow grounds for denial were meritless and the record contained no other evidence to sustain the finding); Crown USA, Inc. , 90-INA-113 (Sept. 23, 1991) (certification granted where employer successfully rebutted CO's narrow challenge to the existence of an employer-employee relationship).
1. Significant financial or managerial involvement
In the following cases, no employer-employee relationship existed where the alien had a significant ownership interest or managerial involvement in the sponsoring company:
-
Gervais Bourbonnais Enterprises of California,
Inc.
, 90-INA-242 (July 18, 1991) (the alien was the
employer's owner, president, operator and marketing
officer).
-
Poling Enterprises (USA) Ltd.
, 88-INA-327 (Aug.
2, 1989) (the alien had 8.75% share in the employer's parent
corporation, was director of both the employer and parent,
was the employer's only employee, originally came to U.S.
for purpose of organizing and establishing the
employer).
-
A Rug House, Inc.
, 87-INA-630 (May 31, 1989)
(
en banc
) (the alien was 1/3 owner, incorporator and
active corporate director).
-
Odessa Executive Inn, Inc.
, 88-INA-410 (Apr.
18, 1989) (the alien had 65% ownership of employer).
-
Shehrazade, Inc.
, 88-INA-170 (July 29, 1988)
(the alien had 48% ownership interest, family had other 52%
interest, the alien was the employer's incorporator and
president, the alien's wife was vice-president, the alien
and his wife were the only directors).
- Edelweiss Manufacturing Co., Inc. , 87-INA-562 (Mar. 15, 1988) (the alien was Chief Executive Officer, General Manager of Operations and 100% shareholder of the employer).
2. Personal presence, knowledge or experience or financial investment
In the following cases, no employer-employee relationship existed where the sponsoring company's viability relied in great part on the alien's personal presence, knowledge, or experience or financial investment:
-
Malone & Associates
, 90-INA-360 (July 16,
1991) (
en banc
) (the employer was a law firm, founded
and wholly owned by alien, bearing the alien's name, and at
the time recently located in the alien's home).
-
Ewencast, Inc.
, 90-INA-24 (July 30, 1991) (the
alien was 50% shareholder of the employer, invested one-half
of the initial capital and made personal contributions
crucial to the ongoing operation of the business).
-
Kafko Partnership
, 89-INA-297 (May 14, 1991)
(the alien and his brother were partners, the alien
exercised complete control, the alien was closely involved
in creation and development of enterprise, partnership
relied on the alien's knowledge, experience and
participation).
- Rimaco, Inc. , 89-INA-362 (Nov. 16, 1990) (the alien was the employer's only employee in U.S., business would cease without the alien).