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					U.S. Department of Labor                  Board of Alien Labor Certification Appeals
                                          800 K Street, NW, Suite 400-N
                                          Washington, DC 20001-8002

                                          (202) 693-7300
                                          (202) 693-7365 (FAX)




                                                                        Issue Date: 09 September 2010

     BALCA No.:               2009-PER-00278
     ETA No.:                 A-06093-03312

     In the Matter of:

     INTERVID, INC.,
                              Employer,

               on behalf of

     COLLIN STEYN,
                              Alien.

     Certifying Officer:      William Carlson
                              Atlanta Processing Center

     Appearances:             Lesley Amano, Esquire
                              Miles & Stockbridge P.C.
                              Baltimore, Maryland
                              For the Employer

                              Gary M. Buff, Associate Solicitor
                              Frank P. Buckley, Attorney
                              Office of the Solicitor
                              Division of Employment and Training Legal Services
                              Washington, DC
                              For the Certifying Officer

     Before:                  Colwell, Johnson and Rae
                              Administrative Law Judges
                            DECISION AND ORDER
                     AFFIRMING DENIAL OF CERTIFICATION

PER CURIAM. This matter arises under Section 212 (a)(5)(A) of the Immigration and
Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20,
Part 656 of the Code of Federal Regulations (“C.F.R.”).


                                            BACKGROUND

           On April 4, 2006, the Certifying Officer (“CO”) accepted for filing the
Employer’s Application for Permanent Employment Certification for the position of
“Chief Executive Officer.” (AF 155-167).1 The Employer indicated in section C-9 of the
application that it was “a closely held corporation, partnership or sole proprietorship in
which the alien has an ownership interest.” (AF 155).

           On April 28, 2006, the CO issued an Audit Notification, finding that the
application showed that the Employer is a closely held corporation, partnership or sole
proprietorship. (AF 48-51). The CO directed the Employer to submit several documents
showing its corporate structure and finances, as well as documentation evidencing
recruitment. (AF 51).

           On May 23, 2006, the Employer responded to the Audit, attaching: a copy of its
Articles of Incorporation; a list of directors and officers and their titles and positions;
financial history of the corporation, including total investment in the business entity and
the amount of investment of each officer; corporate overview, including history and
financial summary; a Board of Directors resolution consenting to sale of the company;
audited/reviewed financial statements for several periods from 2002 through 2005; name
of business official with primary responsibility for interviewing and hiring applicants for
positions within the organization and the name of the business official having control or
influence over hiring decisions; a copy of the ETA Form 9089; a copy of the Notice of
Filing; and relevant recruitment documentation. (AF 45-154).
1
    In this decision, AF is an abbreviation for Appeal File.



                                                       -2-
       On November 9, 2007, the CO denied certification. (AF 16-18). The CO stated,
“Where the employer is a closely held corporation or partnership in which the alien has
an ownership interest, a presumption exists that influence and control over the job
opportunity is such that the job opportunity is not bona fide, i.e., not open and available
to U.S. workers.” (AF 18). The CO asserted that the documentation the Employer
submitted to overcome this presumption was insufficient to demonstrate that the job was
open and available. Id. The CO contended that the documentation showed that the
foreign worker was “the President, Chief Executive Officer, and Treasurer of the
corporation, holds 50% of the shares, and that hiring authority for the position is the Vice
President of the corporation, who holds the remaining 50% of the shares in the
corporation.” Id. The CO noted that 20 C.F.R. § 656.10(c)(8) requires that the job
opportunity “is clearly open to any U.S. worker.” Id.

       Subsequently, the Employer submitted a request for review. (AF 5-44). Citing
Modular Container Systems, Inc., 1989-INA-228 (July 16, 1991) (en banc), the Employer
asserted that the Department of Labor stated that no single factor would be controlling in
a determination of whether a job opportunity is bona fide where the alien has an
ownership interest in the employer, but that it would consider the totality of the
employer’s circumstances. (AF 8). The Employer contended, “ETA’s decision focuses
only on those few factors that go against the company, and ignores the majority of factors
that favor approval of the application.” Id. Citing the factors in Modular Container
Systems, the Employer asserted: the Alien was not involved in the recruitment process; no
family relationship exists between the Alien and the directors or officers; the Alien was
neither an incorporator nor a founder of the company; the Alien does possess an
ownership interest in the Employer; the Alien does hold a management position and is on
the Board of Directors, but does not control Board decisions; the Employer is small, but
not tiny, employing 27 persons; the Employer did not require special or unusual job
duties for the position; and the Employer was in existence 17 years prior to hiring the
Alien, thus he is not inseparable from the company due to a pervasive presence. (AF 8-
13).




                                            -3-
        On March 26, 2009, the CO issued a letter of reconsideration, finding that the
Employer’s request did not overcome all of the deficiencies indicated in the
determination letter. (AF 1). The CO asserted that the Employer did not prove that the
job opportunity was actually open to qualified U.S. workers. Id. The CO contended that
the Alien is involved in the management of the company, serving as Director, Chairman
of the Board, CEO, and President, and his primary responsibilities include administrative
and operational execution. Id. The CO further asserted that the Alien has an ownership
interest in the company, is on the Board of Directors, and is so inseparable from the
sponsoring employer that the employer would be unlikely to continue in operation
without him. Id.

        BALCA issued a Notice of Docketing on April 13, 2009. The Employer filed a
Statement of Intent to Proceed on April 24, 2009. Neither party filed an appellate brief.




                                      DISCUSSION

        The regulation at 20 C.F.R. § 656.10(c)(8) requires the employer to attest that
“[t]he job opportunity has been and is clearly open to any U.S. worker.” 20 C.F.R. §
656.17(l) provides, “If the employer is a closely held corporation or partnership in which
the alien has an ownership interest, or if there is a familial relationship between the
stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is
one of a small number of employees, the employer in the event of an audit must be able
to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all
U.S. workers….”

        In the instant case, the Employer acknowledged that it was a closely held
corporation by indicating in section C-9 of its PERM application that it was “a closely
held corporation, partnership or sole proprietorship in which the alien has an ownership
interest.”   (AF 155).    The issue in this case is whether the Employer was able to
demonstrate the existence of a bona fide job opportunity, and that the job was nonetheless
available to all U.S. workers. In Modular Container Systems, Inc., supra, which is


                                             -4-
referenced in the preamble to the PERM regulations, the Board held that the question of
whether a bona fide job opportunity exists turns on an examination of the totality of
circumstances. The Board stated the factors to examine include, but are not limited to,
whether the alien:
         is in the position to control or influence hiring decisions regarding the job for
         which labor certification is sought;
         is related to the corporate directors, officers, or employees;
         was an incorporator or founder of the company;
         has an ownership interest in the company;
         is involved in the management of the company;
         is on the board of directors;
         is one of a small number of employees;
         has qualifications for the job that are identical to specialized or unusual job duties
         and requirements stated in the application; and
         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.


Modular Container Systems, Inc., supra at 8-10 (footnotes omitted). The employer’s
level of compliance and good faith in the processing of the claim is also relevant. Id.

         In the instant case, as Chief Executive Officer and Managing Director, the Alien
is clearly involved in the management of the company. It is also undisputed that the
Alien is on the Board of Directors, and possesses a 50% ownership interest in the
company.2 Regarding the Alien’s hiring authority, although the Employer asserted that it
took steps to remove the Alien from the hiring process, the Employer also stated in its
audit response that the Alien generally had a role in the company’s hiring. Specifically,
the Employer stated that its Vice President is responsible for hiring positions within the
sales discipline, the Alien is responsible for hiring positions within the administrative
discipline, and they are jointly involved in hiring for the operations discipline. Thus, the
Alien was generally responsible for 50% of the company’s hiring. This fact makes it
difficult to accept the Employer’s contention that the Alien, as the CEO and Managing

2
  We note the Employer’s argument that the Employer’s former parent company retains an option to
reacquire up to 40% of the Employer’s equity, in which case the Alien would become a minority owner.
This factor, however, does not change the fact that at the time of the recruitment and application for labor
certification, the Alien owned one-half of the Employer.



                                                    -5-
Director, would have no control or influence over hiring decisions involving a managerial
position, such as that of the CEO. Accordingly, we find that the Alien is in a position to
control or influence hiring decisions regarding the job for which labor certification is
sought.

          In the Employer’s favor, he is not related to the corporate directors, officers, or
employees; the Employer’s requirements for the job are not overly specialized or
unusual; and the Employer does not have an overly small number of employees.3

          Regarding whether the Alien was an incorporator or founder of the company, as
the Employer pointed out in its appellate brief, the Alien was not technically a founder
since the original company was independent for 17 years before it became a subsidiary of
a South African company. However, as is stated in the Employer’s corporate overview,
(submitted with its audit response,) in 2001, the original company, Secur-Data Systems,
Inc., was bought out by Intervid International AG.                   Subsequently, in 2004, senior
management in North America, which included the company’s current Vice President
and the Alien, negotiated a purchase of InterVid, Inc. (the current company), and
reorganized it. Thus, although the Alien was not a founder of the original company, he
has played a major role in a management buyout of this company, and served in a vital
managerial position throughout its reorganization and restructuring.                         This action
undoubtedly placed the Alien in an essential and influential role that gave him a
pervasive presence in the company.

          Taking into account the Alien’s position of control and influence, his managerial
role as Director, Chairman of the Board, CEO, and President, and the fact that he
possesses a 50% ownership in the company, we find that the Alien is so inseparable from



3
  We note that this analysis is relative and there is no set threshold to determine how many employees an
employer can have and still be considered small. In its request for review, the Employer contended that
section 656.17(l)(5), which refers to documenting any familial relationship in a company with fewer than
10 employees, implies that 10 is a relative threshold for determining the validity of the job opening.
Although we will refrain from ruling on whether or not 10 is a reasonable threshold to consider an
Employer small, we agree with the Employer that it is not “overly small” to the extent that its size creates
doubt as to the existence of a bona fide job opportunity. In this particular case, we find that the
Employer’s size is a neutral factor in the analysis.


                                                    -6-
the sponsoring employer that the employer would be unlikely to continue in operation
without him.

        Moreover, the Employer carries the burden of showing that it has a bona fide job
opportunity that is open to all U.S. workers. As the Board found in Modular Container
Systems, Inc., though it is a difficult task, the sponsoring employer can overcome the
regulatory proscription that self-employment is a per se bar it if it can establish “genuine
independence and vitality not dependent on the alien's financial contribution or other
contribution indicating self-employment.”         Id. at 6.     Viewed in the totality of the
circumstances, the Employer has not met its burden of overcoming the presumption that
the Alien has influence and control over the job opportunity. Accordingly, we find that
the Employer has not established that it has a bona fide job opportunity.

        Based on the foregoing, we affirm the CO’s denial of labor certification.



                                           ORDER


        IT IS ORDERED that the denial of labor certification in this matter is hereby
AFFIRMED.
                                                 Entered at the direction of the panel by:



                                             A
                                                 Todd R. Smyth
                                                 Secretary to the Board of
                                                 Alien Labor Certification Appeals


NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will
become the final decision of the Secretary unless within twenty days from the date of service a
party petitions for review by the full Board. Such review is not favored and ordinarily will not be
granted except (1) when full Board consideration is necessary to secure or maintain uniformity of
its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions
must be filed with:

        Chief Docket Clerk



                                               -7-
        Office of Administrative Law Judges
        Board of Alien Labor Certification Appeals
        800 K Street, NW Suite 400
        Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a
written statement setting forth the date and manner of service. The petition shall specify the basis
for requesting full Board review with supporting authority, if any, and shall not exceed five
double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition,
and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may
order briefs.




                                                -8-

				
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