How Close is Too Close?

In order to sponsor an employee for legal permanent residence ("green card"), most employers will need to file a labor certification application with the U.S. Department of Labor ("DOL"). Before the employer can file the labor certification, the employer will need to offer a permanent position to the foreign worker and also conduct a recruiting process in an attempt to find U.S. workers who can fill the position. It is only when the employer is unable to find a qualified U.S. worker to fill the position, that the employer can then file a labor certification application on behalf of the foreign worker. The regulations require the employer to make specific attestations on the application in connection with such issues as the number of employees at the organization, whether the foreign worker has an ownership interest in the business, and what, if any, familial relationship exists between the business owner and the foreign worker.When the employer is a small company, these attestations can trigger an audit review. Upon review of the application, if DOL determines that the recruiting process was not done in good faith, it can issue an audit notice requesting the employer to demonstrate the existence of a bona fide job opportunity, i.e. , the job has been and is clearly open to any U.S. worker.In its most recent decision, the Board of Alien Labor Certification ("BALCA") reiterated some factors to consider when determining whether a bona fide job opportunity exists. Some of the factors include whether the alien:

1. Is in the position to control or influence hiring decisions regarding the job for which the labor certification is sought;
2. Is related to the corporate directors, officers, or employees;
3. Was an incorporator or founder of the company;
4. Has an ownership interest in the company;
5. Is involved in the management of the company;
6. Is on the board of directors;
7. Is one of a small number of employees;
8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

When the sponsor is a small business, we recommend that it collect and maintain any and all documentation to rebut any presumption that the job opportunity is not bona fide. Some of the documents may include information on the business structure of the employer, a list of all officers and shareholders and a description of their relationship to the foreign worker, the financial history of the company, and the name of the business' official with primary responsibility for interviewing and hiring applicants for positions, and the name of the business' official having control or influence over hiring decisions involving the position for which the labor certification is sought. To avoid delays in the process, these documents should gathered before starting the labor certification process. The above information has been provided to you for educational purposes only. Your facts are unique and therefore you should always contact immigration counsel before proceeding. Special thanks to Clark Lau attorney Magaly Rojas Navarro for contributing this post.