D. Part-time employment
A panel concluded that "[w]here an alien has worked part-time for an employer,
performing the same duties as listed for the petitioned position, labor certification will be
denied unless the employer proves the need for a full-time employee to fill the position."
It further noted that the CO's request that Employer document its changing employment
needs requiring a 40 hour work week, as opposed to the previous 16 hour work week, was
reasonable and Employer's failure to document such a change properly resulted in the denial
of labor certification. King's Gallery, 91-INA-290 (Aug. 12, 1992).
Employer did not establish that position of a cook was full time when the family is not at
home during breakfast and lunch. Pradeep K. Gupta, 94-INA-395 (June 12,
1995)
Employer failed to demonstrate that a family dinner cook was a full time employment at
defined in 20 C.F.R. 656.3 Leonard Green, 94-INA-213 (June 5, 1995).
Labor certification granted for child tutor as a full- time position where
that position involved general child care duties, as well as teaching duties (2 year old child).
Mr. & Mrs. Stanley Tee, 94-INA-10 (June 27, 1995).
In a recent case the Board noted that it is "fundamental that the proposed position must
provide permanent, full-time employment for the alien worker. Joan
Bensinger, 89-INA-52 (Oct. 30, 1989). Employer applied for certification for the
position of child monitor" and the CO denied Employer's application. Upholding the
CO, the Board reasoned that during a full day of work, Alien would spend 3 and one half hours
preparing meals, 2 hours cleaning, 1 hour doing laundry, 3/4 of an hour shopping, 3/4 of an hour
on breaks, and 3/4 hour on miscellaneous chores like looking after children and taking out the
garbage. Since certification was sought for child monitor, the Board reasoned that the CO
validly questioned whether there was full-time employment. Edy Hernan
Perla, 95-INA-246 (Dec. 24, 1996).
In a recent case the Board cited Randy Auerbach, 88-INA-103 (Apr. 7,
1988) (denying certification where Alien had performed the same job duties for Employer
on a part-time basis and Employer submitted no documentation to substantiate his allegations
of additional duties because the position applied for was not shown to be full-time). Employer
applied for certification for the position of child monitor" and the CO denied
Employer's application. Upholding the CO, the Board reasoned that during a full day of
work, Alien would spend 3 and one half hours preparing meals, 2 hours cleaning, 1 hour doing
laundry,
3/4 of an hour shopping, 3/4 of an hour on breaks, and 3/4 hour on miscellaneous chores like
looking after children and taking out the garbage. Since certification was sought for child
monitor, the Board reasoned that the CO validly questioned whether there was full-time
employment. Edy Hernan Perla, 95-INA-246 (Dec. 24, 1996).
III. Employer-employee relationship; investors as
employees
A. Prohibition of self-employment
Employer failed to rebut the CO's conclusion that Alien owned Employer
where Employer's income tax form demonstrated that Alien was the sole of Employer from
August 1, 1987 through July 31, 1988. Employer's counsel argued
"that Alien is no longer the owner, having sold his entire one hundred percent interest
the month before filing an application for labor certification." Initially noting that
counsel's statements could not constitute evidence, the panel nevertheless concluded that
circumstances surrounding ownership of Employer were suspect and labor certification was
properly denied as the job offered did not constitute "employment" under the Act.
International Dadlani, Inc., 90-INA-476 (May 20, 1992).
Labor certification would be denied where it appears from a promissory note attached to the
request for expedited review that Alien acquired an ownership interest in Employer
because, if an alien has an investment interest in an employer, the question of whether an
employer-employee relationship exists may arise. If the position for which certification is sought
constitutes nothing more than self-employment, it does not constitute genuine employment under
the regulations and labor certification is barred because an alien must work for an employer
other than himself. Spectrum Analytical, Inc, 95-INA-324
(Jan. 19, 1997)
B. Employer's burden of proofno new cases
C. CO's reasonable request for informationno new
cases
D. Obligation of CO to notify employer of grounds for
challenge; appropriateness of remandno new cases
E. Illustrative cases
1. Significant financial or managerial involvementno
new casenotes
2. Personal presence, knowledge or experience or financial
investment
no new cases
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