The limited number of categories under which someone can obtain a U.S. green card has led immigrants (and their attorneys) to try some creative approaches to qualifying. One of these is to try having a family member who also happens to own a U.S. business petition for the foreign-born person to become an employee of his or her company.
This might seem especially attractive in cases where the only U.S. family member is slightly too distant in relation to qualify as a family petitioner. Another reason to try such an approach might be speed. It can take a decade or longer for a U.S. citizen to sponsor a sibling for a green card, for example. The employment-based process may be much faster, depending upon the particular job and the sponsored family member's place of birth.
In unusual cases, having a business owner sponsor a family member as an employee can work. However, there are a number of cautions to be aware of before trying this, as described in this article.
The PERM labor certification process for employment-based green card sponsorship requires an employer to test the U.S. labor market to determine whether there is a qualified and available U.S. worker for an open position. In all cases, the employer must conduct the recruitment effort in good faith and evaluate applicants for the job.
When the sponsored employee either owns or is related to an owner of the employer, the burden of demonstrating good faith recruitment is even greater. (The U.S. government has every reason to believe that the company owner will be biased toward the family-member applicant.) The following outlines the background for these cases and provides some pros/cons and key considerations.
The Department of Labor ("DOL") has a rather broad definition for which relationships qualify as family. This definition becomes especially important because if the foreign-born person is a family member, this triggers the requirement to answer "yes" to question C.9. on the PERM application. That questions asks, "Is the employer a closely held corporation, partnership, or sole proprietorship in which the [sponsored person] has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the [sponsored person]?"
According to the DOL, a "familial relationship includes any relationship established by blood, marriage, or adoption, even if distant." All cousins, regardless of degree, aunts, uncles, grandparents, grandchildren, in-laws and step-relations are covered. Same-sex marriages also are included if they are valid in the place where the couple married. In a July 28, 2014 FAQ, the DOL confirmed that answering this question on the application incorrectly (i.e. not disclosing the relationship) is sufficient grounds to deny or revoke a PERM application.
The DOL will examine the "totality of the circumstances" to determine whether there truly is a job opportunity, or whether it's just a way to get a green card for a family member. (To learn more about the DOL’s line of thinking, see the appellate decision referred to in the July 28, 2014 FAQ mentioned above, Modular Container Systems, Inc., 89-INA-228 (July 16, 1991.)
The key factors the DOL will consider are whether the sponsored family member (i) may influence hiring decisions, (ii) is related to company directors, officers, or employees, (iii) incorporated or founded the company, (iv) owns part or all of the company, (v) participates in company management, (vi) serves on the company's board of directors, (vii) is one of only few employees, (viii) is uniquely qualified for the job, and (ix) is essential for the continued operation of the company.
In reviewing these factors, the DOL will determine whether an actual job exists that is open to U.S. workers. The presence of one or more of the above factors will make DOL less likely to conclude that a real job is being offered, thus likely dooming the application.
If the company has an actual job opening, and specifically needs someone with the foreign-born family member's qualifications, it's only logical to want to sponsor that person. The potential downsides are discussed below. But if there truly is a business need for the person, it may well be worth pursuing a PERM labor certification for the family member.
There remain many reasons to pause before proceeding, however. First, the owners of the company need to be sure there truly is a legitimate job opening and that they need to hire someone. The Department of Labor may request supporting documents concerning the company and the job to verify this.
Second, the employer needs to be sure that any documentation concerning the sponsored family member's qualifications are reliable. For example, if the job requires two years of experience in a specific area of expertise, the sponsored family member may be tempted to fabricate employment records and presume that no one will verify them.
Compare this to the careful and objective human resources manager who verifies a candidate's past employment before making an offer of employment. The former can lead only to disaster, and the DOL has authority to deny the application and impose sanctions on the employer, such as a bar from submitting further applications for a period of time.
Finally, you’ll need to take into account that part of the labor certification process involves screening candidates who apply for the job in response to advertisements. The employer must honestly decide whether he or she can be objective in evaluating candidates. To file the immigration application, the employer will need to demonstrate that no qualified candidates applied for the job. That creates incentives for the employer to be creative or subjective in rejecting applicants.
While the process normally requires an employer to use its usual recruitment protocols, it may be appropriate in a family case such as this to enlist a third party to conduct candidate screenings and thereby enhance the integrity of the recruitment effort. No matter who does the recruiting, however, you’ll need to recognize that a great deal of effort may go into the recruitment and application process with no result other than that finding a U.S. candidate who is perfect for the job.