BALCA En Banc Decision Summaries
ALIEN OWNERSHIP AND CONTROL

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Sufficiency of employer's evidence

Alien ownership and control: failure to establish that employer was not under alien's control. AMGER CORPORATION. , 1987-INA-545 (Oct. 15, 1987) (en banc)

Self-employment as a per se bar

Alien ownership and control: investor cases: self-employment as a per se bar: Under the regulatory definition of "employment," 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.: " Though many aliens with investment interests in the sponsoring employer will have difficulty overcoming this regulatory proscription, we hold that the sponsoring employer can overcome it if it can establish genuine independence and vitality not dependent on the alien's financial contribution or other contribution indicating self-employment." See also Hall v. McLaughlin, 864 F.2d 868, 870 (D.C. Cir. 1989); Edelweiss Manufacturing Company, Inc., 1987-INA-562 (Mar. 15, 1988) (en banc). MODULAR CONTAINER SYSTEMS, INC. , 1989-INA-228 (July 16, 1991) (en banc)

Alien ownership and control: investor cases: self-employment as a per se bar: "Malone & Associates is a law firm, founded and wholly owned by the Alien, bearing the name of the Alien, and located until recently in the Alien's own home. The job duties and requirements are specialized and very closely match the qualifications of the Alien. As such, it would be difficult to conceive of a situation in which employment of the Alien would more clearly be tantamount to self-employment. Hence, labor certification is barred per se." (footnote omitted). MALONE & ASSOCIATES , 1990-INA-360 (July 16, 1991) (en banc)

Financial interest of alien; inseparability of alien's business interests

Alien ownership and control: company is alter ego of the alien: alien sole stockholder, CEO, and general manager: In matters affecting the public interest such as labor certification, the factfinder is not bound to find fraud or sham in order to look behind the corporation to determine the validity of its actions. EDELWEISS MANUFACTURING COMPANY, INC. , 1987-INA-562 (Mar. 15, 1988) (en banc)

Alien ownership or control: closely held corporation: alien held important role in formation of company, one of four directors, and owns about 10% of shares. KEYJOY TRADING COMPANY , 1987-INA-592 (Dec. 15, 1987) (en banc)

Alien ownership and control: job not established to be bona fide where Alien' spouse owed company and where the Alien had been with the company since the time of its foundation in the US several years earlier. YOUNG SEAL OF AMERICA, INC. , 1988-INA-121 (May 17, 1989) (en banc)

Bona fide job opportunity: employer-employee relationship: alien ownership interest: "In Hall v. McLaughlin, 864 F.2d 868, 873-874 (D.C. Cir. 1989), the Court identified the standards as (1) whether in light of the alien's part ownership, the corporation is a sham and a scheme for obtaining the Alien's labor certification (sham test), and (2) whether the corporation has come to rely heavily upon the alien's skills and contacts so that, were it not for the alien, the corporation would probably cease to exist (inseparability test).": "At the root of both tests is a consideration of whether, by virtue of a sham or inseparability, the employer would be unlikely to replace the Alien and whether there is a bona fide job opportunity clearly open to any qualified U.S. worker.": inseparability test not meet where alien and his wife owned 49% of the shares of the corporation, were two of the three members of the Board of Directors, were the officers of the corporation, and the alien held the position of President, was one of only five employees of the corporation, and developed the product sought to be marketed by the corporation. [Editor's note: the Lignomat two part sham/inseparability test was replaced by a "totality of the circumstances" test in Modular Container Systems, Inc., 1989-INA-228 (July 16, 1991) (en banc)]. LIGNOMAT USA, LTD. , 1988-INA-276 (Oct. 24, 1989) (en banc)

Alien ownership and control: application violated the definition of employment section [ "permanent full-time work by an employee for an employer other than oneself. For purposes of this definition an investor is not an employee."] where the alien had a 65% ownership interest in the employer and had not presented evidence to show that the employment decision was independent of his control. The Board rejected Employer's "displacement theory" -- i.e., that labor certification should be granted where the Alien is not depriving any U.S. worker of the position, or adversely affecting similarly employed U.S. workers, since no qualified U.S. workers were available. ODESSA EXECUTIVE INN, INC. , 1988-INA-410 (Apr. 18, 1989) (en banc)

Alien ownership and control: investor cases: bona fide job opportunity: " If the employment is established not to be merely self-employment, and thus not barred per se, section 656.20(c)(8) provides the additional requirement that the employer attest that the job opportunity has been and is clearly open to any qualified U.S. worker. This provision infuses the recruitment process with the requirement of a bona fide job opportunity: not merely a test of the job market." (citations and footnote omitted). The Lignomat USA, Ltd., 1988-INA-276 (Oct. 24, 1989) (en banc) two part sham/inseparability test was replaced in Modular by a "totality of the circumstances" test: " 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. See, e.g., Malone & Associates, 90-INA-360 (July 15, 1991) (en banc) (companion case to today's decision). Moreover, the business cannot have been established for the sole purpose of obtaining certification for the alien, i.e., a sham. Hall, 864 F.2d at 874." MODULAR CONTAINER SYSTEMS, INC. , 1989-INA-228 (July 16, 1991) (en banc)

Alien ownership or control: where the alien had only an insubstantial financial interest in the employer, and there was no evidence of an inappropriately high salary or hidden bonuses or perks, the Board found that employment of the Alien was not tantamount to self-employment, barred per se under section 656.50; however, the Board proceeded to also consider whether the job presented a bona fide job opportunity under section 656.20(c)(8): the Board found under the facts of the case that, despite having a collegial and professional relationship with key members of the sponsoring employer and being a stockholder, a member of the Board of Directors and a Vice President, employer proved that it was presenting a bona fide job opportunity where the Alien's stock ownership was small, he had no familial relationship with the employer, it was clear that others were the prime movers in corporate affairs and that the position was not created merely to obtain labor certification for the alien. HUMAN PERFORMANCE MEASUREMENT, INC. , 1989-INA-269 (Oct. 25, 1991) (en banc)

Alien ownership and control: investor cases: bona fide job opportunity: employer failed to establish a bona fide job opportunity where the employer, Malone & Associates, was a law firm, founded and apparently wholly owned by the Alien, bearing the name of the Alien, and located until recently in the Alien's own home. In addition, the job duties and requirements were specialized and closely matched the qualifications of the Alien. The Board also took into consideration Employer's actions during the processing of the claim (implausibly reducing the salary to level of an associate; recruitment efforts and interviewing). [Editor's note: This is a companion case to Modular Container Systems, Inc., 1989-INA-228 (July 16, 1991) (en banc). See the casenote for Modular for additional information on the legal standards]. MALONE & ASSOCIATES , 1990-INA-360 (July 16, 1991) (en banc)

Familial relationship

Alien ownership or control: familial relationship: alien brother of owner: "We did not hold nor did we mean to imply in Young Seal that a close family relationship between the alien and the person having the hiring authority, standing alone, establishes, that the job opportunity is not bona fide or available to U.S. workers. Such a relationship does require that this aspect of the application be given greater attention. But, in the final analysis, it is only one factor to be considered. Assuming that there is still a genuine need for an employee with the alien's qualifications, the job has not been specifically tailored for the alien, the Employer has undertaken recruitment in good faith and the same has not produced applicants who are qualified, the relationship, per se, does not require denial of certification.": record was sufficient to establish that position for French baker was a bona fide job opportunity. PARIS BAKERY CORPORATION , 1988-INA-337 (Jan. 4, 1990) (en banc)