"Employment" means permanent full-time work by
an
employee for an employer other than oneself. For purposes of this
definition an investor is not an employee.
The employer bears the burden of proving that a position is
permanent and full-time. If the employer's own evidence does not
show that a position is permanent and full-time, certification
may be denied. Gerata Systems America, Inc., 88-INA-344
(Dec. 16, 1988) (employer submitted contracts with third parties
lacking essential elements to prove permanent and full-time
employment).
If a CO reasonably requests specific information to aid in
the determination of whether a position is permanent and
full-time, the employer must provide it. Collectors
International, Ltd., 89-INA-133 (Dec. 14, 1989) (existence of
permanent, full-time employment not shown where the CO requested
evidence of the source of the employer's funds and income in the
last year, and the employer failed to produce it).
A CO's finding that a job is not full-time or permanent must
have some foundation. Han Yang Sewing Machine Co.,
88-INA-207 (June 29, 1989) (denial reversed because it was based
on a speculative assertion that the employer's business could not
support a full-time market analyst). A denial which is based on
vague and unsupported comparisons to jobs with other employers
will not be affirmed. Central Korean Evangelical Church,
88-INA-336 (Nov. 22, 1988).
Where the employer, CO and state job service exhibited
significant confusion as to whether a job was appropriately
designated as temporary or permanent, and where prior to Board
review the employer and CO agreed that the position should be
treated as permanent, the Board remanded the case to the CO and
the employer was permitted to retain its original prior date as a
matter of equity. Independent Land Development, 90-INA-185
(Apr. 25, 1990).
An arrangement where the employer is a placement and
consultant company for computer professionals which seeks to
place the alien in another company, which would then retain the
right to hire and fire the alien, is not objectionable as long as
the employment is permanent and the employer guarantees the
alien's wage. International Contractors, Inc., 89-INA-278
(June 13, 1990).
A seasonal job may not constitute full-time permanent
employment. A Taste of India, Inc., 90-INA-21 (July 12,
1991) (restaurant closed during winter). However, if a job's
duties vary with the seasons, but employment continues throughout
the year, the job may be considered full-time and permanent.
Gary M. Burke, 88-INA-547 (June 20, 1991) (vacated June
20, 1991 upon granting of en banc review; appeal dismissed on
Sept. 23, 1991 on motion of withdrawal by employer) (remanded for
re-recruitment with accurate description of job duties).
Where the alien has worked part-time for the employer
performing the same duties as listed for the petitioned position,
it may be difficult for the employer to prove its need for a
full-time employee. In Howard Hewett, 88-INA-371 (June 12,
1989), an employer failed to demonstrate the existence of
full-time work where the alien had worked for the employer only
eight hours per week for the last three years. Similarly, in
Randy Auerback, 88-INA-103 (Apr. 7, 1988), an employer
failed to document the need for a full-time houseworker where the
alien had performed the same job duties for the employer on a
part-time basis and the employer submitted no documentation to
substantiate his allegation of additional duties. SeeJoan Bensinger, 89-INA-52 (Oct. 30, 1989).
When an alien for whom certification is sought has an
investment interest in the employer, the question of whether an
employer-employee relationship exists may arise. It is not enough
for the position be full-time and permanent: pursuant to the
definition of employment in § 656.50, the alien must work
for an employer other than himself. 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 per se. Modular Container Systems,
Inc., 89-INA-228 (July 16, 1991) (en banc), citing
Hall v. McLaughlin, 864 F.2d 868, 870 (D.C. Cir. 1989);
Edelweiss Manufacturing Company, Inc., 87-INA-562 (Mar.
15, 1988) (en banc).
To meet the burden of proving that the employment of an
alien is not tantamount to self-employment, the employer must
establish that it is genuinely independent and vital apart from
any financial or other contribution by the alien. Modular
Container Systems, Inc., 89-INA-228 (July 16, 1991) (en
banc). The alien's investment status and other factors
relevant to the question of self-employment should be examined.
Id.
Even if the employer establishes that employment of the
alien is not tantamount to self-employment, and thus not barred
per se, § 656.20(c)(8) provides the additional requirement
that the employer establish that it is providing a bona fide job
opportunity. Id. For detailed treatment of this issue, see
Chapter 3 (Alien Ownership and Control).
The employer must provide information about the
employer-employee relationship if it is requested by the CO.
Modular Container Systems, Inc., 89-INA-228 (July 16,
1991) (en banc).
The CO must give the employer notice of the grounds on which
he is challenging the existence of an employer-employee
relationship. Patisserie Suisse, Inc., 90-INA-131 (Oct.
16, 1991). In Patisserie Suisse, Inc., a panel refused to
expand its review beyond the CO's narrow and insufficient ground
for finding that no employer-employee relationship existed; that
is, that the alien's family owned a majority of stock. However,
since the record contained other evidence which appeared to
support the CO's finding, the panel remanded the case for the CO
to issue an NOF clearly stating all of the possible grounds for
finding that no employer-employee relationship existed.
Cases will not always be remanded to give the CO an
opportunity to clarify or expand the challenge to the existence
of an employer-employee relationship. SeeAltobeli's
Fine Italian Cuisine, 90-INA-130 (Oct. 16, 1991)
(certification granted where the CO's narrow grounds for denial
were meritless and the record contained no other evidence to
sustain the finding); Crown USA, Inc., 90-INA-113 (Sept.
23, 1991) (certification granted where employer successfully
rebutted CO's narrow challenge to the existence of an
employer-employee relationship).
In the following cases, no employer-employee relationship
existed where the alien had a significant ownership interest or
managerial involvement in the sponsoring company:
Gervais Bourbonnais Enterprises of California,
Inc., 90-INA-242 (July 18, 1991) (the alien was the
employer's owner, president, operator and marketing
officer).
Poling Enterprises (USA) Ltd., 88-INA-327 (Aug.
2, 1989) (the alien had 8.75% share in the employer's parent
corporation, was director of both the employer and parent,
was the employer's only employee, originally came to U.S.
for purpose of organizing and establishing the
employer).
A Rug House, Inc., 87-INA-630 (May 31, 1989)
(en banc) (the alien was 1/3 owner, incorporator and
active corporate director).
Odessa Executive Inn, Inc., 88-INA-410 (Apr.
18, 1989) (the alien had 65% ownership of employer).
Shehrazade, Inc., 88-INA-170 (July 29, 1988)
(the alien had 48% ownership interest, family had other 52%
interest, the alien was the employer's incorporator and
president, the alien's wife was vice-president, the alien
and his wife were the only directors).
Edelweiss Manufacturing Co., Inc., 87-INA-562
(Mar. 15, 1988) (the alien was Chief Executive Officer,
General Manager of Operations and 100% shareholder of the
employer).
In the following cases, no employer-employee relationship
existed where the sponsoring company's viability relied in great
part on the alien's personal presence, knowledge, or experience
or financial investment:
Malone & Associates, 90-INA-360 (July 16,
1991) (en banc) (the employer was a law firm, founded
and wholly owned by alien, bearing the alien's name, and at
the time recently located in the alien's home).
Ewencast, Inc., 90-INA-24 (July 30, 1991) (the
alien was 50% shareholder of the employer, invested one-half
of the initial capital and made personal contributions
crucial to the ongoing operation of the business).
Kafko Partnership, 89-INA-297 (May 14, 1991)
(the alien and his brother were partners, the alien
exercised complete control, the alien was closely involved
in creation and development of enterprise, partnership
relied on the alien's knowledge, experience and
participation).
Rimaco, Inc., 89-INA-362 (Nov. 16, 1990) (the
alien was the employer's only employee in U.S., business
would cease without the alien).
