. . . a person, association, firm, or a corporation
which currently has a location within the United States to
which U.S. workers may be referred for employment, and which
proposes to employ a full-time worker at a place within the
United States or the authorized representative of such a
person, association, firm, or corporation. For purposes of
this definition an "authorized representative"
means an employee of the employer whose position or legal
status authorizes the employee to act for the employer in
labor certification matters.
The petitioner bears the burden of proving the existence of
an employer. See Chapter 7 (Burden of Proof). The
petitioner's evidence is weighed according to the principles
discussed in Chapter 11 (Evidence).
Seealso Chapter 28 (Status of Employer)
regarding a change in employers.
An entity which offers only seasonal employment is not an
"employer" under § 656.50, because the job offer
is not full-time. A Taste of India, Inc., 90-INA-21 (July
12, 1991). For a discussion of seasonal employment, see Chapter
9, II, C (Definition of Employment).
An entity which has no employees, sales, physical location
or imminent plans to begin business, and whose commencement of
business activity is wholly contingent upon certification of the
alien, is not an "employer" under § 656.50,
because there is no offer of full-time work or "location
within the United States to which U.S. workers can be referred
for employment." Artdesign, Inc., 89-INA-99 (Dec. 5,
1989); seealsoGerata Systems America,
88-INA-344 (Dec. 16, 1988).
If an entity proves that it has definite plans for business
expansion, and that the expansion will generate full-time,
permanent work, then the entity may meet the definition of
"employer." Although no such cases have arisen in the
context of § 656.50, several business necessity cases
suggest this result. See Chapter 32, VI, E (Business
Necessity), discussing Remington Products, Inc.,
89-INA-173 (Jan. 9, 1991) (en banc); Clifton Warner
&Associates, 90-INA-183 (Sept. 9, 1991); Cable
Car Photo andElectronics, 90-INA-141 (June 5, 1991);
Advanced DigitalCorporation, 90-INA-137 (May 21,
1991).
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. Artdesign,
Inc., 89-INA-99 (Dec. 5, 1989); seealsoGerata Systems America, 88-INA-344 (Dec. 16, 1988).
An unsigned service contract between the petitioner and a
client does not establish the existence of an
"employer." Gerata Systems America, 88-INA-344
(Dec. 16, 1988). In Gerata, the service contract would not
have been persuasive even if signed, since it did not guarantee
full-time, permanent work for the alien.
A petitioner must provide directly relevant and reasonably
obtainable documentation requested by a CO. See discussion
of Gencorp, 87-INA-659 (Jan. 13, 1988) (en banc),
in Chapter 11, II (Evidence). For example, upon a request by the
CO, a petitioner must provide a business license or other
documentation to prove the existence of an on-going business and
job opening. Kogan & Moore Architects, Inc.,
90-INA-466 (May 10, 1991).