According to a recent published decision from the Board of Alien of Labor Certification Appeals (BALCA), the Department of Labor (DOL) can consider the overall fiscal circumstances of the owner of a sole proprietorship when assessing its ability to pay wages. This important ruling enables small businesses that are owned by a single proprietor to more easily obtain approval for their labor certification applications.
As discussed in previous articles in this column, the labor certification process is necessary for alien workers to gain lawful permanent residence through an employer-sponsor for most occupations. Before the U.S. Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service) may approve petition requests, the DOL must first certify to the USCIS that: (1) there are not sufficient U.S. workers, who are able, willing, qualified, and available at the time of the application for a visa and admission into the U.S. and at the place where the alien is to perform the work; and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
According to the regulations, an application for labor certification must clearly show that the employer has enough funds available to pay the wage offered to the alien worker, and that the DOL may request information showing the ability to pay this wage. This recent BALCA decision involved a small farm owned and operated as a sole proprietorship. The DOL based its denial of the labor certification application on the fact that the business had experienced losses from $25,000 to $30,000 a year in the past few years, as reflected in the employer’s personal tax returns. Through an attorney, the employer argued that the DOL narrowly interpreted its tax returns and that the government should consider the employer’s overall fiscal circumstances, including its adjusted yearly gross income, in evaluating its ability to pay. The first BALCA panel affirmed the DOL’s denial, but on en banc review, the administrative board reversed itself and ruled that the DOL must consider a sole proprietor’s entire financial circumstances in considering its ability to pay the wage offered to the alien worker. This ruling bodes well for the thousands of small businesses operating as a sole proprietorship that demonstrate the need for immigrant labor.
The labor certification process is complex. Consulting a knowledgeable and experienced immigration attorney is critical to ensuring a successful application for labor certification and employment-based immigration.
By Robert L. Reeves, Esq., and Elsie V. Hui, Esq.