Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 9 -- SUPPLEMENT

1. Supplement current through January 1997

DEFINITION OF EMPLOYMENT

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TABLE OF CONTENTS

I. Regulatory definition

II. Requirement that position be permanent and full-time

III. Employer-employee relationship; investors as employees

I. Regulatory definition

no new cases

II. Requirement that position be permanent and full-time

no new cases

A. Evidentiary and procedural matters

no new cases

1. Burden of proof

Labor certification was denied where the petitioner failed to establish that it was an "employer" and the job offered constituted "employment" within the meaning of § 656.50. Employer argued that it would offer full-time, permanent, salaried employment as a flight instructor. The panel concluded, however, that the record failed to support this assertion. The panel noted numerous factors, including that "[t]he three flight instructors currently employed do not appear to be employees of (petitioner), but rather self employed pilots who maintain a relationship with the school by renting its airplanes and utilizing its name to attract students. The instructors are paid approximately $60.00 per hour, usually in cash, from the students. They keep $16.00 and "pay the balance to the school for plane rental and presumably use of the school's name and mobile van." The panel further noted that the instructors do not receive a guaranteed salary and the school does not pay wages to the instructors or withhold social security or taxes." Moreover, the petitioner does not exercise control over the instructors and it "does not maintain a telephone listing, does not offer printed material describing the school or its services and does not advertise." Sheldon Smith Aviation , 91-INA-90 (June 1, 1993); see also Tousi Rugs , 92-INA-374 (Sept. 29, 1993) (denying certification for the position of carpet appraiser where Employer's own evidence, some of which is illegible, undated and fails to clearly demonstrate the volume of transactions necessary to support a full-time employee, is inadequate to establish full-time employment).

Labor certification was denied where Employer, operator of a number of small stores, did not adequately document the need for a full-time mechanical engineer. Employer's statement that its business utilizes various machinery which must be installed and repaired did not constitute adequate documentation. The panel noted that "it does not appear reasonable, nor was it suggested, that any of this equipment was . . . designed by such an employer's own professional engineering staff . . . or that such employees were needed to insure that the equipment was installed or functioning . . ." R.H. Maleki Enterprises , 93-INA-21 (Feb. 24, 1994).

Labor certification was denied where Employer failed to comply with the CO's request that Employer document the existence of a full time position as an interpreter between English speaking executives and Turkish store managers and employees. Employer's rebuttal consisted only of financial data, including columns of numbers relating to company credit and debit. The panel concluded that "such evidence bears little relationship to the duties of the proposed job of translator." Tay Management Corp. , 93-INA-155 (May 4, 1994).

Where the CO questioned whether a job offer of child-tutor is full-time and requested Employer to provide appropriate documentation, Employer's unverified, self-serving statements do not constitute such documentation. Chief Judge Litt dissented, however, contending that the CO specifically requested only certain general information, to which Employer fully responded. Accordingly, the case should be remanded to afford Employer an opportunity to provide specific documentation. Miaofu Cao , 94-INA-53 (Nov. 29, 1994) (en banc review pending).

Labor certification properly denied where the CO questioned whether position of domestic cook was full-time and Employer's rebuttal only showed that the job holder's typical 40 hour week would include serving the two adult members of the household 25 meals, serving the two school age children 25 meals, food shopping and minimal cooking for entertainment. Moreover, the Board questioned Employer's assurances that the job required no child care duties since one child arrived home from school by lunchtime while neither of the parents arrived home until three hours later. Jane B. Horn , 94-INA-6 (Nov. 30, 1994). See also Marianne Tamulevich , 94-INA-54 (Dec. 5, 1994) (denying certification where Employer did not provide evidence supporting the existence of a full-time position); Mr. & Mrs. Clifford I. Cummings , 94-INA-8 (Dec. 21, 1994) (denying certification where Employer failured to provide evidence supporting existence of full-time cook); Dr. Daryao S. Khatri , 94-INA-16 (Mar. 31, 1995) (denying certification for the failure of Employer to provide documentation to demonstrate that a domestic cook was a full time position when the cook was only required to prepare one meal a day).

No bona fide job opportunity exists when Employer's tax records indicate an inability to pay an employee's wages and the records show a decrease in gross sales in recent years. Fred's Allaf Jewelers , 94-INA-620 (Aug. 15, 1996)

When an employer fails to present reasonably requested documents and fails to adequately document that a current job opening exists and that the employer has sufficient funds to pay the employee, certification is properly denied because no bona fide job opportunity has been shown. Aerial Topographic Maps , 94-INA-00627 (Aug. 15, 1996).

Where Employer is start up company and cannot submit tax documents, payroll, or any other specific data to show that it is an employer within the meaning of the labor certification regulations and that it can afford to guarantee full time employment, certification was properly denied. Fritz R. Kundrun , 94-INA-240 (January 10, 1996).

Where Employer in start up company and cannot submit tax documents, payroll, or any other specific data to show that it is an employer within the meaning of the labor certification regulations and that it can afford to guarantee full-time employment, certification was properly denied. Milany Productions Corp ., 94-INA-454 (Jan. 10, 1996).

The employer has burden of showing that position is full-time. Where CO directs the employer to show same and the employer fails to do so, certification was properly denied. Bijan Azadi & Assoc. , 94-INA-382 (Oct. 4, 1995).

Where the employer's evidence does not support findings of a full-time job, re-advertisement is not an available option and certification is properly denied. Here, Employer in rebuttal to the NOF stated that Alien would teach "80% of the time and would carving and enameling 20% of the time, and "a full-time position is needed to effectively teach students the world class Russian technique (of wood carving and enameling)." Employer included with the rebuttal a copy of news letter that made no mention of teaching or art instruction of any kind." Hudson River Gallery , 94-INA-246 (Jan. 17, 1996).

If the employer's own evidence does not show that a position is permanent and full time, certification may be denied. Rajwinder Kaur Mann , 95-INA-328 (Feb. 6, 1997).

Employer sought labor certification for the position of "maintenance mechanic," the job duties including, "will inspect and maintain car wash equipment in good working order; [m]ake repairs on . . . machinery." In the NOF, the CO questioned whether a full-time employee was needed for the position, and suggested an independent contractor might be more appropriate. The CO requested documentation of a typical daily schedule for each week of a representative month, the functions performed by the position, the number of employees with job titles and duties, and copies of the lease agreement. As rebuttal, Employer only submitted a letter stating an in-house mechanic was necessary to provide preventative maintenance and to keep the operation running smoothly. The CO denied certification and the Board affirmed. The Board determined that the "[e]mployer's statements with respect to business necessity...are not convincing" and "the statement that the applicant will perform preventative maintenance...is too ambiguous...to document the necessity of a full time employee." Valley Gas Co. , 95-INA-291 (Dec. 19, 1996). See also Cine Video Corp. , 95-INA-50 (Sept. 25, 1996) (denying certification where Employer's president sent a note to the CO stating that Alien was offered a temporary, 1 year position): Lori Gusky , 94-INA-518 (Aug. 1, 1996).

The employer bears the burden of establishing that a position is permanent and full time. See Gerata Systems America, Inc. , 88-INA-344 (Dec. 16, 1988). In the NOF, the CO questioned whether Employer full-time and permanent employment for the position of tutor. The Board held that Employer's evidence, statements made by Employer, failed to adequately document the full-time nature of the Employment. Harkewal's S. Sekhon , 94-INA-463 (Feb. 26, 1996).

Employer applied for certification for the position of cook - specialty Indian food in Employer's household. After the CO questioned whether the position was permanent and full-time, Employer rebutted, arguing that, [because of our complex and busy work schedules, we have no time to cook for ourselves." Employer continued, arguing that the family is accustomed to Indian foods, does not eat fast food, and therefore has no choice but to hire a full-time cook. Employer last argued that her household has a "definite need for a full-time cook" and that, because they could afford it, there was nothing unusual in "hiring a suitable person for the position." The CO denied certification and the Board affirmed. Citing Gerata Systems America, Inc. , 88-INA-344 (Dec. 16, 1988), the Board noted that certification may be denied where the employers' own evidence does not show that a position is permanent and full time. The Board reasoned that Employer had provided only general responses to some of the questions asked by the CO. It did not specify how many meals would be cooked daily and how many people would be eating. It appeared to the Board that Employer, her spouse, and the children were gone often during the day and that only the grandparents needed to be fed. Moreover, Employer had failed to document the entertainment schedule for the proceeding 12 months. Dr. Urvashi Kapoor , 95-INA-151 (Dec. 2, 1996).

If the employers' own evidence does not show that a position is permanent and full-time, certification may be denied. See Gerata Systems America, Inc. , 88-INA-344 (Dec. 16, 1988). The CO denied an application for certification for the position of cook on the basis that it was not permanent and full-time employment. Employer stated that the successful applicant would cook for 4 to 6 people 5 days a week. However, the parents and 2 children were gone 2 from 9:00 am until after 5:00 p.m. each day such that the family was not home for breakfast or lunch. Moreover, nothing suggested in the evidence that the 2 remaining people, the housekeeper and babysitter, would eat 3 meals a day. Pradeep K. Gupta , 94-INA-395 (June 12, 1995).

Employer applied for certification for the position of cook - specialty Indian food in the Employer's household. After the CO questioned whether the position was permanent and full-time, Employer rebutted, arguing that, "[because of our complex and busy work schedules, we have no time to cook for ourselves." Employer continued, arguing that the family is accustomed to Indian foods, does not eat fast food, and therefore has no choice but to hire a full-time cook. Employer last argued that her household has a "definite need for a full-time cook" and that, because they could afford it, there was nothing unusual in "hiring a suitable person for the position." The CO denied certification and the Board affirmed. The Board compared the instant case with Jane B. Horn , 94-INA-06 (Nov. 30, 1994) (denying certification where the where Employer's rebuttal merely demonstrated the job holder's typical 40-hour week would include serving 2 adult members of the household 25 meals, serving the 2 children 25 meals, food shopping, and minimal cooking for the entertainment) Employer here, the Board reasoned, had provided only general responses to some of the questions asked by the CO. It did not specify how many meals would be cooked daily and how many people would be eating. It appeared to the Board that Employer, her spouse, and the children were gone often during the day and that only the grandparents needed to be fed. Moreover, Employer had failed to document the entertainment schedule for the proceeding 12 months. Dr. Urvashi Kapoor , 95-INA-151 (Dec. 2, 1996).

In one recent case the Board cited Gerata Systems America Inc. , 88-INA-344 (Dec. 16, 1988) (denying certification where employer's own evidence demonstrates that a position is not permanent and 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).

Employers, apparel manufacturers, sought certification for the positions of "duplicate makers" or "sample stitchers." The CO issued a NOF questioning both whether the work was permanent and full-time (given that there seemed to be periods in which workers were forced to take leave without pay) and whether, in view of the number of previous certifications for the same or like positions, Employer had sufficient volume of business to guarantee work for the positions. In regard to the first question, the CO requested documents related to payroll which the Employers failed to provide. In regard to the second, Employer was required to provide business contracts that would justify the hiring of more workers. Employers did not provide contracts but did provide tax returns, invoices, contractor agreements and purchase orders. The Employers further noted that they had idle sewing machines. The CO denied certification and the Board affirmed. As to the CO's first concern, the Board reasoned that employers must provide information related to end-of-year-shutdowns when the CO reasonably requests such information and it was not provided here. See Bijan Azadi & Assoc. , 94-INA-382 (Oct. 4, 1995); Collectors International, Ltd . , 94-INA-382 (Dec. 14, 1989). As to the CO's second concern the Board noted that, although the tax returns, invoices, contractor agreements and purchase orders demonstrated a great deal of work performed, it is nonetheless difficult to "extract from these documents any meaningful information concerning sufficient volume of business in the future to support full-time work for additional employees." In addition, an assertion that Employers have idle sewing machines "does not establish that contracts are in place to employ additional workers." Employers failed to establish that sufficient volume of business to guarantee full-time work for additional employees. See Gerata Systems America, Inc. , 88-INA-344 (Dec. 16, 1988) (placing the burden on the employer to demonstrate that a position is permanent and full-time), cited by the Board in the instant case. Top Sewing, Inc. & Columbia Sportswear , 95-INA-563 and 96-INA-38 (Jan. 28, 1997).

2. CO's reasonable request for information

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. Rajwinder Kaur ann , 95-INA-328 (Feb. 6, 1997).

Employer applied for certification for the position of "maintenance mechanic," the job duties including, "will inspect and maintain car wash equipment in good working order; [m]ake repairs on . . . machinery." The CO requested documentation of a typical daily schedule for each week of a representative month, the functions performed by the position, the number of employees with job titles and duties, and copies of the lease agreement. As rebuttal, Employer only submitted a letter stating an in-house mechanic was necessary to provide preventative maintenance and to keep the operation running smoothly. The CO denied certification and the Board affirmed. The Board reasoned that "[a]n Employer must provide information concerning the business operation in order to permit the CO to make an informed opinion about the reasonableness of the job requirements." See Modular Container Systems, Inc. , 89-INA-228(July 16, 1991). Valley Gas Co. , 95-INA-291 (Dec. 19, 1996).

Employer applied for certification for the position of cook - specialty Indian food in Employer's household. After the CO questioned whether the position was permanent and full-time, Employer rebutted, arguing that, "[because of our complex and busy work schedules, we have no time to cook for ourselves." Employer continued, arguing that the family is accustomed to Indian foods, does not eat fast food, and therefore has no choice but to hire a full-time cook. Employer last argued that her household has a "definite need for a full-time cook" and that, because they could afford it, there was nothing unusual in "hiring a suitable person for the position." The CO denied certification and the Board affirmed. Citing Gerata Systems America, Inc. , 88-INA-344 (Dec. 16, 1988) and Collector's International , Ltd. , 89-INA-133 (Dec. 14, 1989), the Board reasoned that employers must provided specific information that the CO reasonably requests. The Board reasoned that, here, Employer had provided only general responses to some of the questions asked by the CO. It did not specify how many meals would be cooked daily and how many people would be eating. It appeared to the Board that Employer, her spouse, and the children were gone often during the day and that only the grandparents needed to be fed. Moreover, Employer had failed to document the entertainment schedule for the proceeding 12 months. Dr. Urvashi Kapoor , 95-INA-151 (Dec. 2, 1996).

Employers, apparel manufacturers, sought multiple certifications for the position of "duplicate maker" or "sample stitcher." The CO issued a NOF questioning whether the work was permanent and full-time, given that there seemed to be periods in which workers were forced to take leave without pay. The NOF requested documents related to payroll to demonstrate whether there were end-of-year shutdowns and Employers failed to provide them. Denying certification, the CO was affirmed by the Board. Citing Bijan Azadi & Assoc. , 94-INA-382 (Oct. 4, 1995) and Collectors International , Ltd. , 94-INA-382 (Dec. 14, 1989) the Board reasoned that employers must provide information related to end-of-year shutdowns reasonably requested by the CO and they failed to do so here. Top Sewing, Inc. and Columbia Sportswear , 95-INA-563 and 96-INA-38 (Jan. 28, 1997).

Failure to address a deficiency noted in the in the NOF was cause for a denial of labor certification for the position of "maintenance mechanic" at a car wash business. The CO had requested in the NOF that Employer demonstrate that the position was permanent and full-time by documenting the typical daily schedule for each week of a representative 1 month period (including outlining the duties to be performed), by documenting the functions to be performed when the car wash machinery is working normally, by documenting the number of other employees and their duties and by submitting copies of a lease agreement describing the location. Employer rebutted the NOF by stating that "it is essential to our operation to have an in-house maintenance mechanic in order to avoid frequent breakdowns..." and "[w]hen all the equipment is in working order we expect the mechanic to perform preventative maintenance on the equipment, which should keep him occupied for forty hours per week." Citing Modular Container Systems, Inc ., 89-INA-228 (July 16, 1991) (en banc), the Board reasoned that an employer must provide information concerning the business operation in order to permit the CO to make an informed opinion about the reasonableness of the job requirements. Here, Employer's statement that the applicant will perform preventative maintenance was too ambiguous in the absence of a definite work schedule to document the necessity of full-time employment. Valley Gas Co. , 95-INA-291 (Dec. 19, 1996).

3. Requirement that CO's finding not be speculative

no new cases

4. Appropriateness of remand

no new cases

B. Placement agencies, consultants and contractors as employers

Where Employer, an employment agency, conceded that job opening exists solely because of its client's needs, Employer must document that the position is full-time and permanent. Integrated Support Systems Inc. , 93-INA-211 (Jun. 28, 1994).

C. Seasonal employment

In an en banc decision a majority of the Board would not certify a landscaping position as permanent employment because the job duties could only be performed approximately ten months per year on account of climatic conditions. The four member majority found that the position fits the definition of "seasonal employment" as found under the temporary labor certification regulations in that it is "exclusively performed at certain seasons or periods of the year." Accordingly, despite the fact that the position was full-time and recurring, the job was not permanent. In dissent, Associate Chief Judge Guill, joined by Chief Judge Litt and Judge Chao, concluded that the temporary and permanent labor certification regulations operate independent of one another. Therefore, that the landscaping position may meet the definition of "seasonal" under the temporary regulations does not preclude an independent determination whether the job can be considered permanent under the permanent regulations. The dissent found that the "reality of the workplace is that certain occupations, for reasons such as weather or custom, have periods in which work cannot be performed", yet there is a bona fide job. According to the dissent, where permanency is raised as an issue, an employer must document the indefinite and substantially continuous nature of the job offered for the position to be considered permanent. Vito Volpe Landscaping, et. al. , 91-INA-300, et.seq. , (Sep. 29, 1994) (en banc). Alamo Landscaping, et. al. , 93-INA-337, et. seq. , (Sep. 29, 1994).

Where the employer cannot provide any documentation of full time position, and where the type of work listed, gardener - is typically seasonal work, employer has not established a full time job and certification was properly denied. E & E Landscaping Co., Inc ., 94-INA-574 (Apr. 2, 1996).

Employer applied for certification for the position of landscape gardener. The CO issued a NOF requesting the Employer to document among other things the number of months each laborer worked in each of the last 3 years. Employer responded, stating that the position is for 42 weeks per year of work." The CO denied certification and the Board affirmed. Citing Vito Volpe Landscaping, et al. , 91-INA-300, et seq. (Sept. 29, 1994) (en banc), the Board noted that the job fit the definition of "seasonal employment" governed by the temporary labor certification regulations since "it is exclusively performed at certain seasons or periods of the year." The Board reasoned that, here, the position was full time and reoccurring, but it only lasted 42 weeks out of the year. Birch Hill Landscaping , 95-INA-129 (Jan. 2, 1997).

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 proof

no new cases

C. CO's reasonable request for information

no new cases

D. Obligation of CO to notify employer of grounds for challenge; appropriateness of remand

no new cases

E. Illustrative cases

1. Significant financial or managerial involvement

no new casenotes

2. Personal presence, knowledge or experience or financial investment

no new cases

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