On 9 September 2010, the Board of Alien Labor Certification Appeals (BALCA) issued a decision and order affirming the denial of certification in matter of Collin Steyn and employer Intervid, Inc. In this matter, Intervid, Inc. filed an Application for Permanent Employment Certification for the position of "Chief Executive Officer" and 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." The Certifying Officer denied the application, stating, "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" and 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."
In its analysis, BALCA cited to 20 C.F.R. § 656.10(c)(8), which requires the employer to attest that "[t]he job opportunity has been and is clearly open to any U.S. worker" and 20 C.F.R. § 656.17(l), which 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...." Because, based on the totality of the circumstances, Intervid had not met its burden of overcoming the presumption that the Alien had influence and control over the job opportunity it did not demonstrate the existence of a bona fide job opportunity that the job was available to all U.S. workers. As such, BALCA affirmed the Certifying Officer's denial of labor certification.