Section 656.30(c)(2) provides that a certification petition
is valid only if the particular job opportunity and the area of
intended employment remain the same.
This provision applies to issues involving changes in
employers and transfers of interests.
In general, a change in employers requires a new application
for certification by the new employer unless the same job
opportunity and the same area of intended employment are
preserved. International Contractors, Inc., and Technical
Programming Services, Inc., 89-INA-278 (June 13, 1990). A
change in employers does not necessitate a reapplication for
certification where the alien is working in the exact same
position, performing the same duties, and in the same area of
intended employment for the same salary or wage. Id.
An arrangement where the employer has contracted the alien's
services to another company on a permanent basis is not
necessarily unlawful, even if the client business retains the
right to hire and fire the alien. International Contractors,
Inc., and Technical ProgrammingServices, Inc.,
89-INA-278 (June 13, 1990).
A placement and consultant company for computer
professionals employed the alien as a consultant and
permanently contracted the alien's services to a client
company, which retained the right to hire and fire the
alien. The panel held that this type of employment
relationship did not violate § 656.30(c)(2).
International Contractors, Inc., and Technical
Programming Services, Inc., 89-INA-278 (June 13,
1990).
Transferring the contract to another contractor does not
automatically invalidate the application so long as the job
opportunity and the area of intended employment are preserved.
International Contractors, Inc., and Technical Programming
Services, Inc., 89-INA-278 (June 13, 1990).
The fact that the contract was transferred to another
computer consulting firm (in effect a change in the
employer-petitioner during the certification process) did
not automatically invalidate the application under
§ 656.30(c)(2) because the job opportunity and the area
of intended employment were exactly the same.
International Contractors, Inc., and Technical
Programming Services, Inc., 89-INA-278 (June 13,
1990).
Transferring the interest in labor certification to a
successor company is not unlawful under § 656.30(c)(2).
American Chick Sexing Association and Accu-Co., 89-INA-320
to 327 (Mar. 12, 1991), aff'd., May 12, 1992 (en
banc).
The Board upheld the panel's decision in American
Chick Sexing wherein it was determined that
§ 656.30(c)(2) is not violated where a company timely
transfers its interests in labor certification applications
to another company, and the successor company preserves the
particular job opportunities and area of intended
employment. The panel also noted that evidence establishing
that an employer-employee relationship was created during
the rebuttal period was a timely submission to counter the
alleged lack of bona fide employer-employee relationship at
the time of the NOF.
In addition, the Board held that a CO may require any
necessary certifications by the successor company.