No Labor Certification for CEO who has 50% ownership in company


The Board of Alien Labor Certification Appeals (BALCA) agreed with the certifying officer that the labor certification application for the CEO of a closely held company should be denied, handing down another blow to the concept of the immigrant entrepreneur (Immipreneur).

BALCA relied heavily on its previous decision in Modular Container Systems to affirm the CO's finding that “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.”

This does not mean that a person closely involved in a company cannot obtain a certification, which is good news.  However, the petitioning company " 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 .'

Ricky Malik, Esq.

Attorney at Law