The Impact of a Familial Relationship on PERM Labor Approval
Question C.9 on the PERM application states, “Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the [foreign worker]?”
It seems like such an easy question, but if the employer indicates on the Application for Permanent Employment Certification, ETA Form 9089 (PERM application) that a familial relationship exists, you should expect an audit from the Department of Labor (DOL). Under these circumstances, the DOL usually initiates an audit to ensure no undue influence exists in an offer of permanent employment to the foreign worker. While an audit does not mean that the PERM application will be denied, you will want to be prepared with supporting documentation.
PERM is an attestation-based program. There are many attestations that must be made by the employer if planning to sponsor a foreign worker through the employment based green card process. Among other things, an employer must attest through the PERM application that the job opportunity described on the Form has been clearly open to U.S. workers.
In order to do so, an employer must conduct mandatory recruitment steps in good faith prior to filing a PERM application on behalf of a foreign worker. A Certifying Officer (CO) may only certify a PERM application if there are not U.S. workers able, willing, qualified, and available to fill the open position at the time the PERM application is filed. Therefore, the CO has an obligation to look into any attestations made by the employer at the time of filing the application.
A CO will want to look further into an application where a familial relationship exists because of its potential to create undue influence over the recruitment process.
What is a familial relationship?
The DOL takes a broad interpretation of what a familial relationship is. A familial relationship includes those by blood, marriage, or adoption no matter how distant the connection. Some examples are cousins of all degrees, in-laws, and step-families.
However, a familial relationship between an employer and foreign worker does not automatically establish a lack of a bona fide job opportunity.
What happens when a case is audited due to familial relationship?
If a case is audited due to a familial relationship, the employer will have an opportunity to respond to the CO showing that there is a bona fide job opportunity and that good faith recruitment was conducted.
When a familial relationship is disclosed, the CO will consider the totality of the circumstances to determine whether a bona fide job opportunity (i.e., a job available to all U.S. workers) exists. The following nine factors are considered:
Whether the foreign worker…
- Is in a position to control or influence hiring decisions regarding the job for which labor certification is sought;
- Is related to the corporate directors, officers, or employees;
- Was an incorporator or founder of the company;
- Has an ownership interest in the company;
- Is involved in the management of the company;
- Is on the board of directors;
- Is one of a small number of employees;
- Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
- Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the foreign worker.
In Palm Café Restaurant, 2012-PER-01446 (BALCA June 7, 2016), the Board of Alien Labor Certification Appeals (BALCA) overturned a denial based on a familial relationship and instructed that the CO approve the case. The employer reported that there was a familial relationship when filing the PERM application. An audit was issued requesting recruitment documentation and business records to determine if the foreign worker had influence or control over the job opportunity. After submitting the requested evidence, the PERM application was denied. The CO found that the foreign worker was possibly an integral part of the employer’s business because the application indicated that the foreign worker was the brother of one of the owners of the business.
On appeal, BALCA found that the foreign worker did not have influence or control over the job opportunity and the employer had not violated any of the recruitment process requirements. In fact, BALCA stated that the record supported a finding that 8 out of the 9 factors were inapplicable in this case.
The CO disregarded all evidence presented and based its decision merely on the existence of a familial relationship. BALCA noted that although the foreign worker had a familial relationship with the owners, the foreign worker did not have control and influence over the business, was not involved financially in the business, and the employer was independent from the foreign worker.
Further, BALCA found it significant that recruitment was conducted in good faith and no U.S. workers applied for the job opportunity. Ultimately, no one factor, such as a familial relationship, can be the basis for a denial when the recruitment requirements are satisfied.
The decision highlights that a familial relationship does not have to be a block to gaining PERM approval. However, when a familial relationship exists, employers should be aware of the high likelihood of an audit and be prepared with all documentation to support its case.
To read the BALCA decision, click here: Palm Café Restaurant, 2012-PER-01446 (BALCA June 7, 2016
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