UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 28
STATUS OF EMPLOYER
Return to Main Headings .
Check Supplement .
TABLE OF CONTENTS
I. Regulatory requirement that job opportunity and area of intended employment remain unchanged
-
A.
When a new application is
required
-
B.
Contracting alien's services to
other companies
-
C.
Successor company
I. Regulatory requirement that job opportunity and area of intended employment remain unchanged
Section 656.30(c)(2) provides that a certification petition is valid only if the particular job opportunity and the area of intended employment remain the same.
This provision applies to issues involving changes in employers and transfers of interests.
A. When a new application is required
In general, a change in employers requires a new application for certification by the new employer unless the same job opportunity and the same area of intended employment are preserved. International Contractors, Inc., and Technical Programming Services, Inc. , 89-INA-278 (June 13, 1990). A change in employers does not necessitate a reapplication for certification where the alien is working in the exact same position, performing the same duties, and in the same area of intended employment for the same salary or wage. Id .
B. Contracting alien's services to other companies
1. Permissibility of arrangement
An arrangement where the employer has contracted the alien's services to another company on a permanent basis is not necessarily unlawful, even if the client business retains the right to hire and fire the alien. International Contractors, Inc., and Technical Programming Services, Inc. , 89-INA-278 (June 13, 1990).
- A placement and consultant company for computer professionals employed the alien as a consultant and permanently contracted the alien's services to a client company, which retained the right to hire and fire the alien. The panel held that this type of employment relationship did not violate § 656.30(c)(2). International Contractors, Inc., and Technical Programming Services, Inc. , 89-INA-278 (June 13, 1990).
Transferring the contract to another contractor does not automatically invalidate the application so long as the job opportunity and the area of intended employment are preserved. International Contractors, Inc., and Technical Programming Services, Inc. , 89-INA-278 (June 13, 1990).
- The fact that the contract was transferred to another computer consulting firm (in effect a change in the employer-petitioner during the certification process) did not automatically invalidate the application under § 656.30(c)(2) because the job opportunity and the area of intended employment were exactly the same. International Contractors, Inc., and Technical Programming Services, Inc. , 89-INA-278 (June 13, 1990).
Transferring the interest in labor certification to a successor company is not unlawful under § 656.30(c)(2). American Chick Sexing Association and Accu-Co. , 89-INA-320 to 327 (Mar. 12, 1991), aff'd. , May 12, 1992 ( en banc ).
-
The Board upheld the panel's decision in
American
Chick Sexing
wherein it was determined that
§ 656.30(c)(2) is not violated where a company timely
transfers its interests in labor certification applications
to another company, and the successor company preserves the
particular job opportunities and area of intended
employment. The panel also noted that evidence establishing
that an employer-employee relationship was created during
the rebuttal period was a timely submission to counter the
alleged lack of bona fide employer-employee relationship at
the time of the NOF.
- In addition, the Board held that a CO may require any necessary certifications by the successor company.