When a person wishes to immigrate to the U.S. based on employment, in most cases, they must go through the PERM labor certification process. The Program Electronic Review Management (PERM) system, overseen by the U.S. Department of Labor (DOL), ensures that U.S. workers and the U.S. workforce are protected. The PERM process begins with an offer of a permanent position, and the regulations require the sponsoring employer to test the U.S. labor market to determine if there is an “able, willing, qualified, and available” U.S. worker to fill the position being offered to the beneficiary.

The Department of Labor (DOL) established the PERM labor certification process to protect U.S. workers. To test the U.S. labor market, the sponsoring employer must conduct certain predetermined recruitment steps and evaluate any applicants to determine whether they are “able, willing, qualified, and available” U.S. workers.

The PERM labor certification process is an attestation-based program, meaning that by submitting an application to the DOL, the sponsoring employer must attest that the offered position was clearly open to U.S. workers and that no “able, willing, qualified, and available” U.S. workers were found after conducting good faith recruitment.

Familial Relationships and PERM Compliance

A key concern in the PERM application process is the potential influence of familial relationships on the hiring decision. Form ETA-9089, Question A.17, specifically asks:

“Is there 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.” This definition extends to “cousins of all degrees, aunts, uncles, grandparents, and grandchildren,” and even “relationships established through marriage, such as in-laws and step-families.”

Why Familial Relationships Raise Concerns

The DOL is particularly concerned that the job opportunity and/or the company’s recruitment efforts could be compromised if the beneficiary has family within the sponsoring company. The DOL presumes that when a familial relationship exists between the foreign worker and the sponsoring employer, the recruitment process may not have been conducted in good faith. The agency is concerned that:

• The hiring decision may have been biased.
• The job may not have been truly open to U.S. workers.
• The recruitment process may have been compromised.

In other words, the DOL is concerned that the sponsoring employer may hold a favorable bias toward the family member and may be influenced by the relationship to the disadvantage of qualified U.S. workers.

Disclosing Familial Relationships and Navigating the PERM Process

Employers must properly disclose any familial relationship when filing a PERM application. While disclosing a relationship does not automatically lead to a denial, it often results in an audit to confirm that the job opportunity was bona fide and the recruitment process was conducted in compliance with DOL regulations.

PERM applications are filed electronically via the DOL’s Foreign Labor Application Gateway (FLAG) system. When filing a PERM application, an employer is not required to submit supporting documentation upfront. Instead, the DOL uses a quality control process through 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, 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.

The sponsoring employer must provide evidence that “there has been no undue influence and control and that these job opportunities are available to U.S. workers.” The DOL will evaluate the “totality of the circumstances” to determine whether the job opportunity truly exists or if the sponsoring employer is attempting to bypass the green card process for a family member.

Overcoming the Presumption of Favoritism

To overcome the presumption that a bona fide job opportunity does not exist when a familial relationship is present, the sponsoring employer must clear a high evidentiary hurdle. Key factors that can help mitigate concerns include:

• Clearly demonstrating that recruitment efforts were conducted in good faith and in strict adherence to DOL regulations;
• Ensure the job position’s requirements are consistent with industry standards and not tailored to favor the foreign worker;
• Ensuring that the beneficiary meets all minimum job requirements and that no U.S. worker was unlawfully rejected;
• Providing transparent documentation of the selection process, showing that the hiring decision was made based solely on lawful job-related reasons;
• Demonstrating the independence of the hiring process, showing no undue influence or control by the foreign worker.

No single factor, including a familial relationship, can automatically result in a PERM denial if the recruitment efforts are well-documented and the position is proven to be genuinely open to U.S. workers.

The Risks of Non-Disclosure

It is imperative to disclose any familial relationship when filing a PERM application. Failure to disclose such a relationship can lead to severe consequences. If the truth is discovered later, the PERM application will almost certainly be denied or revoked. Additionally, other penalties may be imposed on the employer.

Seeking Legal Guidance

Before commencing the PERM process when a familial relationship is involved, it is crucial to weigh all factors and consult with a qualified and experienced immigration attorney. A thorough review by legal counsel can help assess potential risks, prepare the necessary documentation, and ensure compliance with all DOL regulations, ultimately increasing the likelihood of a successful PERM application.

Understanding how familial relationships impact the PERM labor certification process is crucial for employers and foreign workers alike. By conducting fair, transparent, and well-documented recruitment, disclosing relationships honestly, and following DOL guidelines, employers can improve their chances of PERM approval while avoiding unnecessary audits and penalties.

For over 25 years, Reddy & Neumann, P.C. has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy & Neumann’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.