Immigration

Srinivasa Reddy Kandi: Navigating the PERM Process Involving Family Relationships

February, 12, 2025-04:18

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Navigating the PERM Process Involving Family Relationships

When an individual seeks to immigrate to the United States based on employment, they typically must undergo the PERM labor certification process. The Program Electronic Review Management (PERM) system, managed by the U.S. Department of Labor (DOL), is designed to safeguard U.S. workers and the domestic labor market. The PERM process initiates with a permanent job offer, and regulations mandate that the sponsoring employer assess the U.S. labor market to ascertain whether there exists an “able, willing, qualified, and available” U.S. worker for the position being offered to the applicant.

The DOL implemented the PERM labor certification process to ensure the protection of U.S. workers. To evaluate the U.S. labor market, the sponsoring employer is required to follow specific recruitment procedures and assess any candidates to determine if they meet the criteria of being “able, willing, qualified, and available” U.S. workers.
The PERM labor certification process operates on an attestation basis, meaning that by submitting an application to the DOL, the sponsoring employer must confirm that the job position was genuinely open to U.S. workers and that no “able, willing, qualified, and available” U.S. workers were identified following a good faith recruitment effort.

Impact of Family Relationships on PERM Compliance
A significant consideration in the PERM application process is the potential impact of family relationships on hiring decisions. Form ETA-9089, Question A.17, specifically inquires:
“Is there a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and/or incorporators?”
The DOL adopts a comprehensive definition of familial relationships. This includes “any relationship established by blood, marriage, or adoption, regardless of distance.” The definition encompasses “cousins of all degrees, aunts, uncles, grandparents, and grandchildren,” as well as “relationships established through marriage.”
Concerns Regarding Familial Relationships in Employment
The Department of Labor (DOL) expresses significant concern that the integrity of job opportunities and recruitment efforts may be jeopardized when a beneficiary has family ties within the sponsoring organization. The DOL operates under the assumption that familial connections between a foreign worker and the sponsoring employer could indicate that the recruitment process was not executed in good faith. The agency's apprehensions include:

- Potential bias in the hiring decision.
- The possibility that the position was not genuinely available to U.S. workers.
- Compromise of the recruitment process.
In essence, the DOL worries that the sponsoring employer may exhibit a preferential bias towards the family member, potentially disadvantaging qualified U.S. candidates.
Disclosure of Familial Relationships and the PERM Application Process
Employers are required to disclose any familial relationships when submitting a PERM application. While such disclosure does not guarantee a denial, it frequently triggers an audit to verify the legitimacy of the job opportunity and the adherence to DOL regulations during the recruitment process.
PERM applications are submitted electronically through the DOL’s Foreign Labor Application Gateway (FLAG) system. At the time of filing, employers are not obligated to provide supporting documentation. Instead, the DOL employs a quality control mechanism through audits to ensure compliance with all PERM requirements. In the case of an audit, the DOL generally requests:

- Documentation of all recruitment efforts, including copies of advertisements and the Notice of Filing.
- Resumes and completed applications from all applicants.
- A recruitment report signed by the employer detailing the recruitment activities undertaken, outcomes achieved, the number of hires, and, if relevant, the number of U.S. applicants who were not selected, along with the lawful job-related reasons for their rejection.

The sponsoring employer is required to present proof that there has been no undue influence or control, and that the job opportunities are genuinely accessible to U.S. workers. The Department of Labor (DOL) will assess the overall circumstances to ascertain whether the job opportunity is legitimate or if the sponsoring employer is attempting to circumvent the green card process for a relative.

Addressing the Assumption of Favoritism
To counter the assumption that a legitimate job opportunity is absent when a family connection exists, the sponsoring employer must meet a significant evidentiary standard. Important factors that can alleviate concerns include:

- Clearly showing that recruitment efforts were made in good faith and in full compliance with DOL regulations.
- Ensuring that the job requirements align with industry norms and are not specifically designed to benefit the foreign worker.
- Confirming that the beneficiary fulfills all minimum job qualifications and that no U.S. worker was improperly excluded.
- Providing clear documentation of the hiring process, demonstrating that the decision was based solely on lawful, job-related criteria.
- Illustrating the independence of the hiring process, indicating no undue influence or control from the foreign worker.

No individual factor, including a familial relationship, can automatically lead to a PERM denial if the recruitment efforts are thoroughly documented and the position is shown to be genuinely available to U.S. workers.

The Consequences of Non-Disclosure
It is essential to reveal any familial relationship when submitting a PERM application. Failing to disclose such a relationship can result in serious repercussions. If the information comes to light later, the PERM application is likely to be denied or revoked, and additional penalties may be imposed on the employer.

Obtaining Legal Advice
Before initiating the PERM process in cases involving a familial relationship, it is vital to consider all relevant factors and seek guidance from a qualified and experienced immigration attorney.
A comprehensive evaluation by legal advisors can aid in identifying potential risks, preparing essential documentation, and ensuring adherence to all Department of Labor regulations, thereby enhancing the chances of a successful PERM application.
It is essential for both employers and foreign workers to grasp the influence of familial relationships on the PERM labor certification process. By engaging in equitable, transparent, and thoroughly documented recruitment practices, openly disclosing relationships, and adhering to DOL guidelines, employers can bolster their likelihood of obtaining PERM approval while minimizing the risk of audits and penalties.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.