BALCA recently upheld a denial of a Texas corporation’s labor certification because it was determined that the position offered was not clearly open to minimally qualified and available U.S. workers.
The Immigration and Nationality Act (“INA”) provides that an employer’s labor certification will be given more scrutiny when any of the following three circumstances occur: (1) an employer is a closely-held corporation or partnership in which the unauthorized immigrant worker has ownership interest, (2) there is a familial relationship between with stockholders, corporate officers, incorporators, or partners, or (3) if the company has a small number of employees. In this case, the beneficiary owned 51% of the company and appeared to influence all hiring decisions, which was not enough to overcome the heightened scrutiny standard.
Factors considered by BALCA in this case:
Is the employee is in a position to control or influence the hiring decisions regarding the job for which labor certification is sought?
Is the employee related to the corporate directors, officers, or employees?
Was the employee an incorporator or founder of the company?
Does s/he have an ownership interest in the company?
Is s/he involved in management?
Is the employee on the board of directors?
How small is the company?
Are the job qualifications specialized or unusual duties?
Is the employee so vital to the company that they could not operate without him/her?
Did the employer comply with application process?
In Foreign Autos, the small company with between 3-7 employees, one of which being the beneficiary of this labor cert who owned a majority of the stock in the business, could not argue the factors to weigh in their favor. BALCA determined that since the beneficiary was in a position to control hiring decisions, had majority ownership interest in and was involved in the management of the small company, that the position included in the labor certification was not clearly available to all U.S. workers.
What this means for you, as employers:
If your company falls into one of the three heightened scrutiny scenarios listed in the regulations: ownership interest, familial relationship, or small number of employees, then BALCA will look to its factor test to determine if the position is truly available to U.S. workers. In thinking through your PERM, if an issue related to the beneficiary’s control arises, walk your case through BALCA’s factors. If the factors weigh out as in Foreign Autos, maybe an employment-based green card is not the best route.
Meghan Sholy | Law Clerk CORPORATE IMMIGRATION COMPLIANCE INSTITUTE 7007 College Blvd., # 460, Overland Park, KS 66211 USA Phone :: 913.317.6200 Email ::firstname.lastname@example.org