Is the Employee ‘Related’ to the Employer? [PERM Compliance]
In the area of Employment-Based immigration, both the PERM and the I-140 Immigrant Petition are based – among other things – upon a “bona fide job opportunity”. This means there’s a sincere and good faith offer of employment.
Many factors go into the analysis of this particular piece of the pie. One key factor is whether the beneficiary is related to the petitioner.
See The Entrepreneurial Spirit–Still Not Alive in Our Immigration System
Question 9 Section C, Employer Information of the PERM ETA-9089 asks, “Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the alien?”
The Department of Labor (DOL) asks this question to determine whether the relationship influences the petitioner’s actions– in advertising for the position, reviewing resumes, and/or interviewing applicants – to the benefit of the foreign worker and the detriment of the U.S. worker.
Although the relationship itself would not normally be the sole factor in the denial of a petition, it definitely has bearing. The DOL and the USCIS may determine that because of the relationship, the job was not actually available to any other candidate, and therefore it isn’t bona fide.
It is concerning that “familial” is defined quite broadly in some DOL and USCIS decisions. In Matter of Summart 374.00-INA-93, BALCA upheld a denial stating that “A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by ‘blood’ or it may ‘be financial, by marriage or through friendship’”. (emphasis added)
The term “friendship”, rather than clarifying, seems to open up another can of worms. What definition is the government using?
Merriam Webster defines “friendship” as:
1. a : one attached to another by affection or esteem: acquaintance
2. a : one that is not hostile b : one that is of the same nation, party, or group
3. one that favors or promotes something (as a charity)
4. a favored companion
For both employers and employees, then, it is extremely important that you disclose to your attorney any prior relationship between owner/operator/executive and the beneficiary of the employment-based immigrant petition.
A competent immigration lawyer should be consulted to ensure that the job opportunity is properly made available to U.S. workers, and the bona fide nature of the position is made clear to the federal agencies involved.