Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 8 -- SUPPLEMENT

Supplement current through January 1997

DEFINITION OF EMPLOYER

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TABLE OF CONTENTS

I. Regulatory definition of "employer"

II. Existence of employer

III. Employer must provide documentation reasonably requested by CO

I. Regulatory definition of "employer"

The petitioner, a subcontractor, failed to document that it was an "employer" within the meaning of the Act as it did not document that it withheld taxes, social security, or other unemployment insurance for its chick sexers. Counsel for the petitioner asserted that the petitioner supervised and controlled the chick sexers and provided the tools and equipment for the job but these assertions were not "supported by documentary evidence or statements by a person with knowledge of the facts." Koam Poultry Technical Service , 90-INA-596 (July 17, 1992).

II. Existence of employer

A. Seasonal employment

no new cases

B. Absence of physical plant, employees or current business activity

no new cases

C. Plans for business expansion

no new cases

D. Mailing address and telephone number

A panel concluded that "[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." Upon concluding, however, that "Employer's rebuttal is clearly inadequate, due at least in part to the imprecise language in the CO's Notices of Findings", the panel remanded the case for further consideration. China Gardens , 91-INA-192 (June 29, 1992).

Labor certification was properly denied where the petitioner failed to establish that it was an "employer" and the job offered constituted "employment" within the meaning of § 656.50 of the regulations. Employer argued that it would offer full-time, permanent, salaried employment as a flight instructor. The panel concluded, however, that the record failed to support this assertion. The panel noted numerous factors, including that "[t]he three flight instructors currently employed do not appear to be employees of (petitioner), but rather self employed pilots who maintain a relationship with the school by renting its airplanes and utilizing its name to attract students." The instructors are paid approximately $60.00, usually in cash, from the students. They keep $16.00 and "pay the balance to the school for plane rental and presumably use of the school's name and mobile van." The panel further noted that the instructors do not receive a guaranteed salary and the school does not pay wages to the instructors or withhold social security or taxes. The petitioner does not exercise control over the instructors and it "does not maintain a telephone listing, does not offer printed material describing the school or its services and does not advertise." Sheldon Smith Aviation , 91-INA-90 (June 1, 1993).

E. Unsigned service contract

no new cases

III. Employer must provide documentation reasonably requested by CO

Employer's failure to submit documentation of business registration with the State of California is a proper basis for finding Employer did not establish the existence of the business. Health Medical Center , 94-INA-202 (May 15, 1995).

Where the CO questioned whether there is a current existing business operated by Employer and requested specific documentation establishing same, Employer's submission of a copy of an expired business license does not prove existence of an ongoing business. Doctors Medical Group of California , 94-INA-207 (May 8, 1995).

The petitioner failed to establish that it was an employer where it "failed to produce a current business license from the state, as reasonably requested by the CO." Rather, the petitioner submitted letterhead and invoices listing different names and addresses. L.A. Pioneer Trading , 91-INA-126 (Jan. 27, 1993).

Employer failed to provide evidence of business license that he had an operating business. Denial is affirmed. STLO Corp ., 90-INA-7 (Sept. 9, 1991). M.H. ohanna, Inc. , 94-INA-432 (Jan. 23, 1996).

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