Can a Family-Owned Company Sponsor a Relative's Employment-Based Green Card? PERM Requirements for Genuine Jobs and Fair Recruitment

Today a reader asked: "Hello Derek, can OPT work at a parent's company? Is that legal, and will it affect future adjustment of status?"

In short: OPT can work at a family-owned company, and the company can sponsor an employment-based green card for the individual. However, the company must prove that (1) the position genuinely exists and is not a fabricated job opportunity to help a family member immigrate, (2) your work background matches the requirements of the position, and (3) the recruitment process was fair and impartial, rather than hiring you because you are a relative of the company's owner or executive instead of hiring a more qualified American worker.

In employment-based sponsorship, the PERM labor certification process requires the employer to test the U.S. labor market to determine whether there are qualified and available U.S. workers to fill the vacancy. The employer must conduct recruitment in good faith and assess the applicant's qualifications. When the sponsored employee is related to the employer, the burden of proving good-faith recruitment becomes more significant, because the U.S. government has reason to believe that the company may not have handled the job interview fairly.

When applying for labor certification, the ETA-9089 form contains this question:

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 foreign-born person]?

The U.S. Department of Labor defines 'familial relationship' quite broadly, including relationships by blood, marriage, or adoption; distant relatives, aunts, uncles, grandparents, grandchildren, in-laws, and step-relations are all covered. If a same-sex marriage is valid in the place where it was celebrated, it also constitutes a 'familial relationship.' If you fail to truthfully disclose a family relationship or fail to answer this question truthfully in the application, your PERM application may be denied or revoked.

The Department of Labor will weigh various factors to determine whether the job is genuine and not merely a fabricated employment opportunity to enable a family member to obtain a green card. They will consider your relatives in the company:

• can influence hiring decisions;

• has a relationship with the company's directors, executives, or employees;

• is a founder or shareholder of the company;

• owns part or all of the company's shares;

• participates in company management;

• is a member of the company's board of directors;

• is one of the company's few employees;

• possesses special job skills;

• is essential to the company's continued operations.

If one or more of the above circumstances apply, the Department of Labor may suspect that no genuine job opportunity exists, which could lead to denial of your application. However, if the company does have an actual job vacancy and the requirements of the position happen to match your background, your PERM labor certification application may still be approved:

• First, the company needs to establish that there is indeed a legitimate job vacancy. The Department of Labor may require the company to provide evidence for verification.

• Second, the company needs to confirm that you meet the requirements of the position and have the corresponding qualifications. For example, if the job requires three years of work experience in a specialized field, and you fabricated work experience to "meet the requirements" without the company verifying it, the Department of Labor may not only deny your application but also sanction the company, such as barring it from submitting such applications again for a period of time.

• Finally, the company needs to prove that the interview and hiring process was fair and impartial. To sponsor a foreign national for labor certification, the company must demonstrate that it cannot find a suitable applicant in the United States—if the applicant is a relative of the company's owner or executive, it is advisable to involve a third-party company in the recruitment and screening process to convince the Department of Labor that the recruitment was fair and impartial and that no suitable U.S. worker could indeed be found.