Our office recently received another straight approval of a PERM labor certification application where a familial relationship exists between the foreign worker and owner of the company. This marks the second consecutive PERM approval (no audit) our office has secured for a case involving a familial relationship within the past 6 months. These remarkable cases stands out, defying the usual complexities and delays associated with PERM applications.

Despite the existence of a familial relationship in our case, the PERM application was approved without triggering an audit, which is a typical measure undertaken by the Department of Labor (DOL).

PERM applications are filed electronically via the DOL’s Foreign Labor Application Gateway (FLAG) system. An employer is not required to submit supporting documentation when a PERM application is filed. Therefore, the DOL implements a quality control process in the form of audits to ensure compliance with all PERM regulations. In the event of an audit, the DOL typically requires:

• Evidence of all recruitment efforts undertaken (copies of advertisements placed and Notice of Filing);
• Copies of applicants’ resumes and completed employment applications; and
• A recruitment report signed by the employer describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. applicants rejected, summarized by the specific lawful job-related reasons for such rejections.

There are 2 types of audits issued by the DOL: Random and Targeted. The DOL will randomly select approximately 30% of PERM applications for audit. The DOL can also issue targeted audits that are triggered by certain aspects of the PERM application. If a targeted audit is issued, the DOL may request additional information or documentation that is directly related to the issue that triggered the audit. One of the audit triggers includes cases where there is a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and/or incorporators.

The DOL takes a broad approach when defining familial relationships. A familial relationship includes “any relationship established by blood, marriage, or adoption, even if distant.” It continues by including “cousins of all degrees, aunts, uncles, grandparents and grandchildren” and even “relationships established through marriage, such as in-laws and step-families” in the definition. 

The DOL takes the position that the job opportunity and/or the company’s recruitment efforts could be called into question if the beneficiary has family within the sponsoring company. There is a presumption the recruitment efforts might not have been conducted in good faith, in a fair and open manner that ensures the offered permanent position is bona fide. In other words, the DOL is concerned the sponsoring employer may hold a favorable bias towards the family member and may be influenced by the relationship to the disadvantage of qualified U.S. workers.

Typically, the DOL will issue an audit to further inquire into the job opportunity to determine whether it is a bona fide job opportunity and good faith recruitment was actually conducted. The sponsoring employer must provide evidence “there has been no undue influence and control and that these job opportunities are available to U.S. workers.” The DOL will look into the “totality of the circumstances” to determine whether the job opportunity truly exists or if the sponsoring employer is merely attempting to circumvent the green card process for a family member.

In our client’s case, the recruitment process was exclusively conducted by an employee of the sponsoring company who had no familial relationship to the foreign worker. This was specifically noted on the PERM application, as well as the fact that the beneficiary had no involvement in the recruitment process.

Unfortunately, PERM processing times have drastically increased over the last few years with no signs of improvement for the future. Currently, the DOL is taking almost 13 months to process PERM applications. If a PERM application is audited, this will add 3 more months to the total processing time. It is important to note that premium processing is not available for PERM applications so there is no way around these lengthy processing times.

In achieving a PERM labor certification approval without undergoing an audit, our office triumphed over the complexities posed by the existence of a familial relationship. Our meticulous approach, comprehensive documentation, and strategic handling of this hurdle paid off as we were able to successfully sidestep an audit. Successfully sidestepping an audit proved pivotal, sparing us from tacking on an additional 3 months to the already lengthy processing time for the PERM application.

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Reddy Neumann Brown P.C. has been serving our clients for over 25 years. Our team is dedicated to helping our clients navigate the U.S. business immigration system by offering prompt, practical, and professional advice. Because the U.S. business immigration system can be tricky, it is always best to contact a qualified immigration attorney to help come up with the proper solution for each individual case.

By: Camille Joson

Camille Joson is a Senior Associate Attorney in Reddy Neumann Brown P.C.’s PERM Labor Certification Department, where she assists clients in the beginning stages of the employment-based green card process. Camille guides clients through the PERM Labor Certification process from start to finish and has handled hundreds of PERM applications throughout her career.