A Company Boss Sues to be Classified as a 'Worker' and Score a Green Card

By Dan Cadman on September 16, 2019

Law360 (mostly behind a paywall) is carrying a story about a Florida fruit juice company suing U.S. Citizenship and Immigration Services (USCIS) because it denied an I-140 petition to classify the company's Venezuelan president as a "worker".

The I-140, "Immigrant Petition for Alien Workers", if approved, entitles the recipient to obtain lawful permanent residence.

Among the issues in question is whether a president can truly be classified as a "worker" of the company, given that he has no superiors. The Venezuelan man's lawyers claim that he can, notwithstanding "common law" understandings of "worker" vs. "employer" or "boss".

The man is not only president of the company, but also 50 percent owner. I'm guessing he's the majority shareholder of the company and thus has the leverage to ensure the board of directors voted him into the position of president to begin with.

I've been thinking about that. It seems to me that USCIS has this exactly right. Consider the consequences were it to adopt the position being taken by the company — which is to say, the man himself, since he is in a unique position to force the company to take the matter to court. When the company speaks, it is him speaking in another voice. Should companies be liable to such "graymail" simply because an individual has the purchasing power to buy shares?

What if the majority shareholder possesses only 30 percent of the stock, and yet still wields such power, which is a reality in some large corporations. Should he still be permitted to force the company to classify him as a "worker"? And isn't it an oxymoron to suggest that a person with the power to force a company to act in a certain way — such as filing a petition, and suing for its denial — is a simple worker subject to the ordinary rules and procedures of the company?

And what about small, one-owner or mom-and-pop enterprises purchased by aliens? Should they be entitled to buy ownership of the local Tastee-Delicious soft-serve ice cream kiosk, declare themselves workers and then file petitions to accord themselves green cards? After all, if USCIS is forced by a court to approve this petition, that is the logical consequence because there is no monetary threshold built into the law since it's supposed to be about workers, not bosses.

I'm hoping that whatever judge presides over this case sees through it and understands that the rule of unintended consequences will inevitably apply if he or she permits the 50 percent owner to succeed in his quest, because it's obvious his only interest in the company is using it to procure resident status — and I'd bet my own admittedly modest bank account that as soon as a green card is put into his hands, he'll jettison his ownership and move it onward to someone else (perhaps another enterprising alien?) as quickly as he can.