This week I decided to feature part of a legal brief regarding the question of family relationships in labor certification processing. Mr. Robert Banta wrote an article for the PERM Book II which fully explores the parameters of alien ownership and control in labor certification processing. In a case which recently came to my attention, we were asked to write a Motion to Reconsider to the Service's decision to revoke an I-140 petition. The Service stated that there was no bona fide job offer because the beneficiary was the sister-in-law of the Employer. During an interview for adjustment of status, the alien had truthfully responded to the examiner's question whether there was any family relationship between her and the employer. As a result, the Service Center , following the examiner's recommendation, revoked the I-140 petition. The Service Center stated that because of the family relationship, the application for labor certification was not bona fide. The following is a Motion to Reconsider a revocation of the I-140 based on a family relationship and nothing more.
"The AAO decision continues the local adjudicator's concern that the alien is the sister-in-law of the petitioner. The decision cites 20 C.F.R. Sec. 626.20(c)(8) and 656.3 that the petitioner has the burden, when asked, to show that a valid employment relationship exists and that a bona fide job opportunity is available to U.S. workers. However, the fact that the alien is a relative of the petitioner does not, on its own, negate the validity of the job offer. There is nothing in the regulations that prohibits an individual to make a job offer to his sister-in-law. In Paris Baker Corporation, 88-INA-337 (BALCA January 4, 1990), the Board of Alien Labor Certification Appeals granted labor certification to the brother of the owner of the corporation, writing:
We did not hold nor did we mean to imply in Young Seal that a close family relationship between the alien and the person having the hiring authority, standing alone, establishes, that the job opportunity is not bona fide or available to U.S. workers…it is only one factor to be considered. (page 4)
The AAO decision draws no specific inference from the fact of the family relationship that exists in the instant case, but merely proffers the information as an innuendo that the job offer may not be bona fide. But, in fact, the job offered was certified by the U.S. Department of Labor, the agency charged with the responsibility of determining the bona fide nature of the job opportunity offered to the alien.
The U.S. Department of Labor applies its own alien control and influence analysis testing during the processing of the application for labor certification. In pre-PERM applications for alien employment, the U.S. Department of Labor relied on the totality of the circumstances test articulated in Matter of Modular Container Systems, Inc., 89-INA-228 (BALCA 1991). The Modular Container analysis was a two-stage analysis of the application for labor certification to assess whether alien influence or control was a factor in the application. Under Modular Container, after establishing the technical sufficiency of the application, the employer must demonstrate that a bona fide job opportunity exists that may be open to any qualified, able, willing, and available U.S. worker. Id.
In the instant case, the application for labor certification has already been subjected to analysis by the U.S. Department of Labor on the issue of bona fide job opportunity and has been certified. The fact that the family relationship exists does not, by itself, undercut the validity of the job offer. Here there is an approved labor certification, documentation of ability to pay the proffered wage, and documentation of the alien’s satisfaction of the minimum requirements of the job. Contrary to the AAO’s conclusion, there is nothing in the record to negate the bona fides of the job offer except speculation and innuendo.
The AAO decision further speculates that the petitioner would not need a fine arts instructor on a full-time basis. The AAO officer apparently bases that speculation on the perceived lack of client orders for the work products of a fine arts instructor. However, the full range of the activities and intentions of the petitioner for the employee’s work is not contained in the record. Hence speculation about what the employer needs is without grounding in fact.
The AAO decision takes up the local adjudicator’s concern with the alien’s place of residence in Florida inasmuch as the job was originally certified to be located in Massachusetts. In 2006, during adjustment proceedings, the beneficiary filed with the Service a letter documenting that she was porting to a job location in Florida under AC 21. The AAO decision addresses that fact but dismisses its importance because the instant matter relates to Form I-140 and not to Form I-485. But, in fact, there is no requirement in the regulations that during the labor certification and immigrant petition phases of the employment-based process for permanent residency that the alien reside in the location where the job is offered. The AAO officer’s suggestion that the alien’s residence in Florida undermines the bona fide nature of the job offer is without basis in law. Of note, the decision observes: “[a]s the record currently stands, we cannot conclude that the beneficiary lacked the intent to accept full-time employment from the petitioner.”
The AAO decision concludes that the job offer cannot be considered a bona fide job offer. On the contrary, we are enclosing a reaffirmation of the job offer by the employer; the record already contains a labor certification, documentation of ability to pay the wage, and evidence of the alien’s experience in the job offered. The AAO’s decision has not identified any law-related basis for affirming the director’s revocation."