In Modular Container Systems, Inc., 89-INA-228 (July
16, 1991) (en banc), the Board clarified the test for the
existence of a bona fide job opportunity where the alien is an
investor or has some other special relationship with the
employer. Before Modular Container, the Board had applied
a variety of tests to determine whether a bona fide job
opportunity existed. See, e.g., Lignomat,
U.S.A., Inc., 88-INA-276 (Oct. 24, 1989) (en banc)
(sham and inseparability); Keyjoy Trading Co., 87-INA-5
(Dec. 15, 1987) (en banc) (significant ownership and
control); B.F. Hope Construction, Inc., 89-INA-182 (Feb.
27, 1990) (significant ownership and control/sham and
inseparability); Ocean Paradise of Hawaii, 89-INA-188
(Nov. 21, 1989) (significant ownership and control). Modular
Container sets a totality of the circumstances test which
embraces the elements of the older tests and provides flexibility
for looking at other relevant factors.
Under Modular Container, the factors to be examined
may include, but are not limited to, whether the alien:
is in the position to control or influence hiring
decisions regarding the job for which labor certification is
sought;
is related to the corporate directors, officers or
employees;
was an incorporator or founder of the company;
has an ownership interest in the company;
is involved in the management of the company;
is one of a small number of employees;
has qualifications for the job that are identical to
specialized or unusual job duties and requirements stated in
the application; and
is so inseparable from the sponsoring employer because
of his or her pervasive presence and personal attributes
that the employer would be unlikely to continue in operation
without the alien.
Id. The totality of the circumstances standard also
includes a consideration of the employer's level of compliance
and good faith in the processing of the claim. Moreover, the
business cannot have been established for the sole purpose of
obtaining certification for the alien. Id.
Labor certification is frequently denied to aliens who
are
also investors, officers or directors of the sponsoring employer.
The following cases (although not all decided under the totality
of the circumstances test), illustrate instances in which the
alien's level of investment or managerial involvement prevented a
finding of a bona fide job opportunity:
Malone & Associates, 90-INA-350 (July 16,
1991)
(en banc) (totality of circumstances test) (no bona fide
job opportunity where the employer was a law firm, founded and
wholly owned by the alien, bearing the alien's name, until
recently located in the alien's home, and applications were
reviewed by a permanent employee of the alien/employer).
Lignomat, U.S.A., Inc., 88-INA-276 (Oct. 24,
1989)
(en banc) (sham and inseparability tests) (genuine test of
labor market unlikely where the alien and his wife were 49%
shareholders, were two of three directors, comprised the officers
of the corporation, and the alien was one of five employees and
had developed the employer's product).
Keyjoy Trading Co., 87-INA-592 (Dec. 15, 1987)
(en banc) (significant ownership and control test) (no
genuine test of labor market where the alien owned 10% of
corporation and occupied several high-ranking positions).
Kafko Partnership, 89-INA-297 (May 14, 1991) (no
bona fide job opportunity where the alien and his brother were
partners, the alien exercised complete control, the alien was
closely involved in creation and development of enterprise, and
partnership relied on the alien's knowledge, experience and
participation).
Rimaco, Inc., 89-INA-362 (Nov. 16, 1990)
(significant
ownership and control/sham and inseparability tests) (no genuine
test of labor market where the alien and one partner were
incorporators, owners, directors and officers, the alien was only
employee in U.S. and business would cease without the alien).
GHR Atlanta Realty, Inc., 89-INA-123 (Mar. 26,
1990)
(the alien was the sole employee, one of two directors and was
transferred to U.S. to establish presence for South African
parent company).
B.F. Hope Construction, Inc., 89-INA-182 (Feb. 27,
1990)
(significant ownership and control/sham and inseparability tests)
(no bona fide job opportunity where the alien was one of two
employees, had previously served as vice president and as one of
two directors, had been 50% owner and may have retained financial
interest in employer).
Hero-Son Corp., 88-INA-555 (Jan. 16, 1990) (the alien
and
his wife were 49% owners and sole officers).
Bulk Farms, Inc., 89-INA-51 (Jan. 3, 1990) (the
alien
was president and sole stockholder, was involved in marketing
business, and employer's brochure contained personal message from
the alien and his wife to prospective customers).
Ocean Paradise of Hawaii, 89-INA-188 (Nov. 21,
1989)
(significant ownership and control test) (genuine test of labor
market impossible where the alien was sole shareholder, chairman
of the board and president of corporation).
Shehrazade, Inc., 88-INA-170 (July 29, 1988)
(the alien held 48% ownership interest, the alien's immediate
family held 52% interest, the alien was incorporator and
president, the alien's wife was vice president, the alien and his
wife were the only directors).
Kica, Inc., 88-INA-169 (July 18, 1988) (the
alien had
served as the employer's president since 1983, was the parent
company's president from 1972 to 1983, was a controlling
shareholder, one of two officers, one of three employees and one
of five directors).
Medical Equipment Designs, Inc., 87-INA-673 (May
6, 1988) (the alien was intimate with foreign inventors of
product,
active in product development, owned royalty rights to product,
was deemed essential by employer to manufacturing and marketing
product in U.S. and to position offered, was sales director and
had primary duty to direct marketing).
Peace on Earth Trading, Inc., 87-INA-741 (Apr.
20,
1988) (the alien was the employer's president at least at time of
application, incorporator, one of two directors, designated agent
for service of process).
Amger Corp., 87-INA-545 (Oct. 15, 1987) (the
alien was 100% shareholder, director, president and founder of
employer; single qualified U.S. applicant hired for another
position).
To the same effect: Young Seal of America, Inc.,
88-INA-121 (May 17, 1988) (en banc); Pan Ocean
Aquarium, 87-INA-691 (Feb. 17, 1988); Friendly Starts,
Inc., 87-INA-517 (Jan. 29, 1988).
Seealso Kaye & Litwin, "The
Issue of
Alien Ownership of the Employer -A Review of BALCA
Decisions," Immigration and Nationality Law 1990
Annual, Volume II, Advanced Chapters, pp. 338-342.
Where, considering the totality of the circumstances, it
appears that an employer is offering a genuine job opportunity,
certification may properly be granted despite the alien's
investment or management involvement in the employer.
Accordingly, in Human Performance Measurement, Inc.,
89-INA-269 (Oct. 25, 1991) (en banc), the Board held that
even though the alien had "a collegial and professional
relationship with the sponsoring employer," and was a
stockholder, member of the Board of Directors, Treasurer, and
Vice President for Finance and Marketing, labor certification
should be granted where it appeared that a genuine job
opportunity existed. Circumstances found persuasive by the Board
included:
the alien's ownership of just four percent of the
employer's stock, along with thirty other shareholders made
it unlikely that the alien had a controlling say regarding
the hiring of employees (four Board members did not join in
this finding, noting that the record did not establish that
four percent was an insignificant level of stock
ownership);
the alien had no family relationship with key company
personnel;
the employer's history indicated that other persons
were the prime movers in corporate affairs;
although the job requirements matched the alien's
qualifications, the job was unique because it involved a new
theory and new technology derived from original research,
with which the alien was familiar because of his graduate
studies;
the alien's work experience for the job was gained
through an employer, which although engaged in joint
research with the sponsoring employer, appeared to be
independent;
the employer would have accepted U.S. applicants with
experience in a related field, but none applied.
One of the factors considered under Modular
Container's totality of the circumstances test is whether the
alien for whom certification is sought is related to the
employer's directors, officers or employees. See Chapter 2
(Bona Fide Job Opportunity; Test for Bona Fides). Prior to
Modular Container, the family relationship between the
alien and employer was the focus of only a few decisions.
In Young Seal of America, 88-INA-121 (May 17, 1989)
(en banc), the Board held that no bona fide job
opportunity existed where, interalia, the alien's
wife was director, chief financial officer and corporate
secretary of the employer corporation. However, in Paris
Bakery, 88-INA-337 (Jan. 4, 1990) (en banc), the Board
stated that a close family relationship between the person having
the authority to hire and the alien (brother of the owner) does
not, standing alone, establish that the job is not bona fide or
available to U.S. workers.
The Board stated in Paris Bakery that while a family
relationship increases the level of scrutiny to be paid to the
application, it is only one factor to be considered. If the
employer genuinely needs an employee with the alien's
qualifications, the job has not been tailored to the alien, and
good faith recruitment has not produced qualified applicants, a
family relationship does not perse require denial
of certification. Id.; seealsoJapanese
Motors International, Inc., 89-INA-246 (Jan. 30, 1991)
(reversing denial based only on the alien's close family
relationship to the employer's president).
In Altobeli's Fine Italian Cuisine, 90-INA-130 (Oct.
16, 1991), the panel noted that Paris Bakery invites a
higher level of scrutiny where there is a family relationship.
Nevertheless, applying the Modular Container totality of
the circumstances test, the panel found that the employer had
demonstrated that it was genuinely independent from the alien
despite the alien's family relationship to two of the employer's
board members and shareholders. Specifically, the panel noted
that the alien had no ownership interest, was not an incorporator
or founder, was not on the board of directors, and was not
currently an employee. In addition, the panel noted that the job
duties did not appear to be tailored to the alien's
qualifications, that the business had been operating without the
alien and there was no reason to think it would not continue to
do so without him, and the CO did not challenge the propriety of
the recruitment.
If a CO requests information about the relationship
between
the employer and the alien, the employer must provide it.
Modular Container Systems, Inc., 89-INA-228 (July 16,
1991) (en banc). Seealso Chapter 11, II
(Evidence). A CO may reasonably request information regarding
whether an alien possesses significant financial or other control
over the sponsoring employer, and failure to provide such
information constitutes a ground for denial of labor
certification. Sato Pharmaceutical, Inc., 88-INA-193 (Oct.
25, 1991); Rainbow Imports, Inc., 88-INA-289 (Oct. 27,
1988). However, the CO should have reasonable grounds for
requesting documentation, and should request documents reasonably
related to the issue of ownership. Wild Heerbrugg Instruments,
Inc., 90-INA-197 (May 3, 1991).
The fact that an employer makes an attestation required
under § 656.20(c)(8) does not prohibit the CO from making
reasonable inquiries regarding the alien's relationship to the
sponsoring employer. Sato Pharmaceutical, Inc., 88-INA-193
(Oct. 25, 1991). Thus, where a CO had made a routine request for
information concerning the alien's relationship to the employer
because the alien held a managerial position with the employer,
the panel held that the request was reasonable and the employer's
refusal to provide the information based on its
§ 656.20(c)(8) attestation was not justified. Id.
In Rainbow Imports, Inc., 88-INA-289 (Oct. 27, 1988),
an employer's argument that "confidentiality" issues
absolved it from disclosing the identity of the officers of its
corporation as requested by the CO was found to be without merit.
The panel found that the employer could not meet its burden of
proving a bona fide job opportunity without disclosing
information about the current officers, their relationships to
the alien and their financial interest in the corporation where
the alien was president of a corporation with a name almost
identical to that of the sponsoring employer.
The CO must preserve the issue of whether a bona fide job
opportunity exists, independent of the issue of whether an
employer-employee relationship exists. Patisserie Suisse,
Inc., 90-INA-131 (Oct. 16, 1991). In Patisserie
Suisse, the panel refused to consider whether a bona fide job
opportunity existed, because the CO failed to preserve the issue
in his final determination.
Similarly, where the CO leads the employer to believe that
she is challenging the existence of a bona fide job opportunity
on narrow grounds, the panel held it would not undertake a review
of all possible grounds for the challenge. Crown USA,
Inc., 90-INA-113 (Sept. 23, 1991). Crown indicates
that the CO does not preserve the entire question of ownership
and control merely by noting the alien's position in the
sponsoring company and inquiring into his or her investment
status. In Crown, the panel granted certification despite
the alien being the employer's General Manager, where the CO
failed to credit the employer's evidentiary showing and denial
that the alien had any interest in the sponsoring employer, the
CO only raised the question of whether the alien was an investor
and did not inquire into whether the management position itself
indicated control over hiring (i.e., non-investment control
factors were not preserved as an issue), and it appeared that the
employer had complied with regulatory guidelines and exhibited
good faith in recruitment.
In Altobeli's Fine Italian Cuisine, 90-INA-130 (Oct.
16, 1991), a panel granted certification where the CO's narrow
grounds for finding that the job was not clearly open to U.S.
workers were meritless and the record contained no other evidence
to sustain the finding. Although not reaching the
§ 656.20(c)(8) issue because it was not preserved by the CO,
Patisserie Suisse, Inc., 90-INA-131 (Oct. 16, 1991)
indicates that a remand is appropriate where a CO based his or
her denial on an erroneous ground, but the record contains other
evidence that could support the finding. In Patisserie
Suisse, the CO erroneously relied solely on the family
relationship between the alien and stockholders and directors of
the employer as establishing per se that there was not an
employer-employee relationship, but the record contained other
information, which when considered with the family relationship
factor, could support a finding that the position was tantamount
to self-employment. The panel did not rule on the appeal record,
however, because the employer had not been provided an
opportunity to rebut matters outside of the narrow family
relationship issue.
In Modular Container Systems, Inc., 89-INA-228 (July
16, 1991) (en banc), limiting its holding to the
particular circumstances of that case, however, the Board
remanded the case for the CO for further development because of
inconsistencies in prior treatment of the statements of counsel
as evidence by both the Board and the COs (see Chapter 9,
Weighing of evidence) and because the Board had used that case to
clarify the law to be applied in "investor" cases.
Section 656.20(b)(3) provides that it is contrary to the
best interests of U.S. workers for the alien or his agent or
attorney to participate in the interview or consideration of U.S.
applicants for the job offered the alien. Therefore, the alien or
his agent or attorney may not interview or consider U.S. workers
unless the agent or attorney is also the employer's
representative who normally interview or considers applicants for
jobs such that offered the alien when labor certification is not
involved.
The alien's participation in interviewing and considering
U.S. workers perse taints the labor certification
process. Master Video Productions, Inc., 88-INA-419 (Apr.
19, 1989) (en banc); Summit Enterprises, Inc.,
88-INA-448 (Oct. 20, 1989); Eastern Trading Co., Inc.,
88-INA-144 (Aug. 4, 1988). Such alien involvement mandates the
denial of certification whether or not any of the U.S. applicants
were qualified and available for the job. Master Video
Productions, supra. Because the violation is
perse, the local job service or the CO may deny an
application before giving the employer an opportunity to recruit,
without violating the employer's due process rights. Eastern
Trading, supra.
In Eastern Trading Co., Inc., 88-INA-144 (Aug. 4,
1988), the alien signed an application seeking to certify himself
for his current position as the employer's president, a position
which gave him exclusive authority to hire and fire; then he
attempted to begin the review of U.S. applicants. When the CO
pointed out that, as the employer, the alien was seeking to hire
himself, the alien unsuccessfully argued that as an individual
employee he should be considered as an entity separate from the
corporate employer.
In Summit Enterprises, 88-INA-448 (Oct. 20, 1989),
the panel held that there was a perse violation of
§ 656.20(c)(8) where the alien, who was director of
operations for the employer, conducted hiring and firing
procedures and made recommendations for actions to be executed by
the president. (The panel discussed § 656.20(b)(3), but
based its holding on § 656.20(c)(8).)
The alien's agent or attorney may not interview or consider
U.S. applicants unless the agent or attorney is also the
employer's representative who normally interviews or considers
applicants for job opportunities such as that offered, but which
do not involve labor certification. 20 C.F.R. § 656.20(b).
Section 656.20(b)(3)(ii), which limits who can represent the
employer in interviews with U.S. applicants, applies only if the
employer's attorney is also the alien's attorney under
§ 656.20(b)(3)(i). Marcelino Rojas, 87-INA-685 (Mar.
11, 1988). A search firm hired by the employer to recruit and
interview U.S. applicants is not an agent of the alien and
§ 656.20(b)(3) does not apply. Physicians Inc.,
87-INA-716 (July 12, 1988) (the employer-medical clinic hired a
physician search firm).
Where the hiring official is the alien's direct subordinate,
the alien exerts significant control even if the subordinate is
"free" to select anyone he chooses. Ocean Paradise
of Hawaii, 89-INA-188 (Nov. 21, 1989). Accord:
Malone & Associates, 90-INA-360 (July 16, 1991) (en
banc) ("independent" review of U.S. applicants
undertaken by permanent employee of the alien, who founded and
owned employer).