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BALCA rules close relationship between labor certification sponsor and prior employer may disqualify prior experience.

The Board of Alien Labor Certification Appeals (BALCA) ruled (on or about December 7, 2006) that experience gained by the employee, beneficiary, with a prior employer may be disqualified if the sponsoring employer and the prior employer have a close relationship.  The general rule is that experience gained with the sponsoring employer can not be considered, absent special circumstances, as experience to qualify the beneficiary for the job offered in the labor certification.  In this ruling, BALCA has effectively held that experience with a prior employer will likewise be disqualified if the sponsoring employer has a close relationship with the prior employer.  In Matter of Harvest Office Services, Inc., 2005-INA-111 (12/7/06), BALCA ruled:    

     However, BALCA caselaw makes it clear that business structure alone is not decisive in determining whether the alien’s experience was gained with a different employer for purposes of section 656.21(b)(5).

     The Board held in Inmos  Corp., 1988-INA-326 (June 1, 1990) (en banc), that to determine whether an alien’s experience was gained with the same or different employer, the circumstances of each case must be examined. The Board stated in Inmos that the fundamental question is whether the employer is circumventing the fair testing of the U.S. labor market by shifting the alien from employment with one entity to employment with another, thereby providing the alien with the requisite training and experience without providing the same opportunity to U.S. workers. In Young Chow Restaurant, 1987-INA-697 (Jan. 13, 1989) (en banc), the Board indicated that showing that the two employers are separate legal entities may not be sufficient to demonstrate that they are separate employers for labor certification purposes. A concurring opinion in Young Chow cited Edelweiss Manufacturing Co., Inc., 1987-INA-562 (March 15, 1988) (en banc). Edelweiss involved the issue of whether the alien in that case was inseparable from the sponsoring employer. The Board’s decision in Edelweiss made it clear that the Board would look to substance, rather than form, in determining whether to grant labor certifications, and that it was not necessary to find fraud to look behind a business structure.

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