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This case arises from the Employer’s request for review of the denial by a U.S. Department of Labor Certifying Officer (“CO”) of an application for labor certification in the above-captioned matter. Permanent alien labor certification is governed by Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. '1182(a)(5)(A), and Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).2 We base our decision on the record upon which the CO denied certification and the Employer’s request for review, as contained in the appeal file (“AF”), and any written arguments. 20 C.F.R. §656.27(c).

STATEMENT OF THE CASE

On or about July 25, 2001, the Employer, ATI Consultores, an environmental consulting  firm, filed a handwritten application for labor certification for the position of “ISO 1400 Witness” (AF 210-211), and a typewritten application for labor certification for the position of “General Manager.” (AF 206-207). Both applications were filed on behalf of the Alien, Enrique Jimenez. Dr. Jimenez3 was also listed as the Employer’s General Manager. Dr. Jimenez provided the “Declaration of Employer” on the application forms. (AF 207, 211). Moreover, he provided the “Declarations” on the typewritten and handwritten “Statement of Qualifications of Alien” forms. (See AF 208-209, 212-213). In a Notice of Findings dated February 12, 2007, the CO proposed to deny certification, citing several deficiencies with the application. (AF 187-196). For the purpose of this decision, our focus is on the CO’s finding that a bona fide job opportunity did not exist which was truly open to U.S. workers because of the relationship between the Employer and Alien. Based on the applications, the CO concluded that the Alien and the Employer were one and the same. Moreover, the CO found that it was unlikely that the Alien would displace himself in his own environmental consulting business. Therefore, the CO requested documentation to establish that 2 This application was filed prior to the effective date of the “PERM” regulations. See 69 Fed. Reg. 77326 (Dec. 27, 2004). Accordingly, the regulatory citations in this decision are to the 2004 edition of the Code of Federal Regulations published by the Government Printing Office on behalf of the Office of the Federal Register, National Archives and Record Administration, 20 C.F.R. Part 656 (Revised as of Apr. 1, 2004), unless otherwise noted. 3 Dr. Jimenez has a Ph.D. in Chemical Engineering from the Polytechnical Institute of Toulouse. (AF 215). the Employer and the Alien were in fact two separate entities, and that the job opportunity was in fact clearly open to qualified U.S. workers. (AF 189). The Employer’s rebuttal was submitted under cover letter dated March 15, 2007, signed by Enrique Jimenez, as the Employer’s General Manager. (AF 40-186). Dr. Jimenez argued that he and the Employer were two separate entities as evidenced by the existence of different taxpayer numbers. Dr. Jimenez indicated, however, that ATI Consultores is a sole proprietorship and that he is the sole owner. (AF 52-53). Moreover, the rebuttal documentation included, among other documents, a Texas Sales and Tax Use Permit for ATI Consultores showing Dr. Jimenez as the taxpayer (AF 61-64); a Texas Assumed Name Records Certificate of Ownership for Unincorporated Business or Profession showing Dr. Jimenez as the owner of ATI Consultores (AF 66); copies of E1 visas from 1997 to 2011 issued to Dr. Jimenez, which beginning with the 1998 visa are annotated for ATI Consultores (AF 67-69); an I-140 Petition dated September 11, 2001 showing ATI Consultores as the petitioner in support of a beneficiary with Dr. Jimenez being shown as the “c/o” addressee (AF 70); copies of ATI’s business tax returns for 2003, 2004 and 2005 showing Dr. Jimenez as the proprietor (AF 76-88); and a Texas Sales and Use Tax Return from 2007 listing both Dr. Jimenez and ATI Consultores. (AF 131). On April 17, 2007, the CO issued a Final Determination denying benefits. (AF 33-39). The CO stated, in pertinent part: In response to the Notice of Findings the employer provided evidence that the alien is in fact both the employer and a major investor with 100% ownership of the company, therefore he does not meet the definition of employer as defined in 656.3 …. The employer then confirms that the alien is the only surviving official having control or influence over hiring decisions involving the position for which labor certification is sought, therefore the job does not appear to be open to U.S. workers. By letter dated May 14, 2007, Dr. Jimenez requested BALCA review. (AF 1-32). The letter does not clearly set out the nature of his objections to the CO’s denial of certification. The most cogent part of the appeal letter contains a contention that under a Treaty Trader Visa (i.e., an E1 visa), an employer and employee can be the same person who administers and operationally controls a company, and that under this Treaty Dr. Jimenez is entitled to request permanent residency. (AF 2). The Board received the Appeal File on July 31, 2007, and issued a Notice of Docketing on August 6, 2007. On August 29, 2007, the Board received a package of materials under the cover letter of Raquel A. Samaniego, Notary Public, Ran Income Tax Service, referencing the Board’s Notice of Docketing. Ms. Samaniego’s letter seems to be based on the belief that the instant matter related somehow to the classification of Dr. Jimenez in regard to his E1 visa. Upon review of the letter and associated documentation, it appears that Ms. Samaniego misunderstood the nature of this appeal of the denial of permanent alien labor certification, and that her submission is, on the whole, not relevant to the matter before this Board.

DISCUSSION

The regulatory definition of “Employment” means, in pertinent part, “permanent fulltime work by an employee for an employer other than oneself.” 20 C.F.R. §656.3. (Emphasis added). In Modular Container Systems, Inc., 1989-INA-228 (July 16, 1991) (en banc), the Board held that “if the alien or close family members have a substantial ownership interest in the sponsoring employer, the burden is on the employer to establish that employment of the alien is not tantamount to self-employment, and therefore a per se bar to labor certification.” If the job opportunity is merely self-employment, it is barred per se. Malone & Associates, 1990-INA- 360 (July 16, 1991)(en banc). Even if an employer establishes that the employment of the alien is not tantamount to self-employment, and thus is not barred per se, section 656.20(c)(8) requires the employer to establish that it is providing a bona fide job opportunity clearly open to any qualified U.S. worker. Id. In the instant case, the overwhelming weight of the evidence establishes that the Alien has a 100% ownership interest in the petitioning Employer and is also its General Manager.4 Other than the observation that the Alien and the Employer have two different taxpayer numbers, the Employer presented no evidence indicating a genuine independence from the Alien’s ownership control and involvement in the business. We find that the relationship between the Alien and Employer is unmistakably tantamount to self-employment, and therefore a per se bar to permanent labor certification. We find that that the requirements for qualification for an E1 Treaty visa have not been shown to be relevant to the question of whether Dr. Jimenez’s solely owned company can sponsor him for permanent alien labor certification from the Department of Labor. Moreover, even if the Alien-Employer relationship were not tantamount to self employment, the Employer has failed to establish that there is a bona fide job opportunity open to qualified U.S. workers. Accordingly, we conclude that labor certification was properly denied.

ORDER

The Certifying Officer's denial of labor certification is hereby AFFIRMED.