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BALCA Upholds Denial Where Sponsored Employee Held an Ownership Interest in Employer

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The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether a fair labor market test occurred when an employee owned 50 percent of the sponsoring employer and usually made hiring decisions. In Matter of Step By Step Day Care, LLC, the employer sponsored the position of “Daycare Center Director” for Jennifer Colyer. The ETA 9089 specified that the employer was a closely-held corporation in which Ms. Colyer held an ownership interest. The case was selected for audit and the employer responded with evidence that (1) Ms. Colyer and her husband owned the employer and each held a 50 percent ownership share; (2) Ms. Colyer held the position of Director; and (3) recruitment was conducted by Gail Green, a subordinate of Ms. Colyer. The Certifying Officer denied the case on the basis that the employer’s evidence did not overcome the presumption that the job offer was not bona fide because the employer was a “closely held corporation, in which the alien has an ownership interest . . . and is one of a small number of employees.” The denial was appealed. In reviewing the decision, BALCA listed ten factors that should be considered to determine whether a bona fide job offer existed in a closely held corporation. BALCA determined that the denial should be upheld because a true test of the labor market did not occur. BALCA based this decision upon the fact that (1) Ms. Coyler held a 50 percent ownership interest in the employer, (2) is involved in the management of the company, (3) is related by marriage to the co-owner, (4) is one of a small number of employees, and (5) was in a position to influence the hiring decision for this role. Cases in which an employer sponsors an employee who is an owner or is related to an owner of the sponsoring organization are often audited. Consequently, the Hammond Law Group suggests that employers speak to an attorney before moving forward with these types of cases. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

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