It’s All Relative: Pitfalls of Perm Labor Certifications for Family

It can be difficult for a U.S. Citizen or a Lawful Permanent Resident (“LPR” – commonly known as a “Green Card” Holder) to help a relative immigrate to the United States.

In the first place, so-called “family-based” immigration limits the types and “degrees” of relatives for whom a citizen or LPR can even apply:

• An LPR can only apply for his or her spouse, child (defined as unmarried and under 21), or unmarried son or daughter (defined as an adult child over age 21).

• Citizens have more options. In addition to their spouses, children, and unmarried sons or daughters, they can also apply (if over 21) for their parents, as well as for their married sons or daughters (and for those individuals’’ spouses and offspring under age 21), and for their siblings (and their spouses and offspring under age 21). Hundreds of thousands of people every year do just that.

Conspicuously absent from the list of relative categories, however, are grandparents, uncles, aunts, cousins, nieces, nephews, in-laws, etc., with whom the U.S. person may have a close relationship, but whom he or she simply can’t help via family-based immigration.

There are other problems with this family-based “scheme,” even for relatives who can be sponsored.

• If an unmarried son or daughter of an LPR marries, any approval notice for that case becomes void.

• Some categories are so backed up that it can take years – literally even decades in some cases – before the relevant visa availability becomes “current.” During that time, sponsors and beneficiaries alike can die; couples may get divorced; children can reach age 21 (this is called “aging out”) and lose eligibility to immigrate with their parents; and unmarried sons and daughters may marry.

The problem of backed-up family-based immigrant visa availability applies across the board but is particularly egregious for nationals of Mexico, the Philippines, and in some categories, India. A discussion of the various categories, and charts showing what visa availability dates are current for what countries for the particular month, are found in the monthly Visa Bulletin published by the Department of State (but also applied by the USCIS), which can be accessed here.

One possible solution, if the U.S. person owns, controls, or is an influential employee of a U.S. business, might be to try helping relatives who otherwise face a ridiculously long wait on the “family” track, or who don’t even fit into any family-based category, through the “parallel” track of employment-based immigration, also shown on the Visa Bulletin.

With the exception of India, China, and the Philippines, most of the visa numbers for those categories are either “current” right now or are reasonably close to being “current,” which means that Immigrant Visa numbers are available, and the person can proceed with final processing.

With the exception of India, even for backed-up categories, nationals of all, or most, countries can expect to see employment-based visa numbers become “current” much faster than numbers for most family-based alternatives. The exception is for people lucky enough to be “Immediate Relatives” of U.S. Citizens – defined as parents (if U.S. Citizen is over 21), spouses, and children (unmarried and under age 21) – for whom there is no visa backlog. But there are times when even the Immediate Relative category can be problematic, as the spouse and children of an Immediate Relative cannot be included in his or her filing.

So why isn’t everybody trying to sponsor relatives via employment-based processing? There are many reasons. Just for instance:

• Most U.S. Citizens or LPRs don’t own, run or control businesses, and aren’t in any position to sponsor (or to get anybody to sponsor) any employment-based immigrants.

• Just because someone has a business, doesn’t mean that the business is suitable for sponsoring employment-based immigrants.

• Even if it is, the relative the business owner might like to sponsor might not be qualified by education, experience, or training for whatever employment the business owner is capable of offering.

But let’s assume that the business owner has a business that could hire the relative, and the relative is qualified for the available position. There is still a major problem: the requirements of the PERM Labor Certification process to conduct a “fair test” of the labor market to assure that qualified U.S. workers are not unfairly discouraged or disqualified from applying.

What is PERM Labor Certification?

In most cases, people who want to immigrate based on employment first have to go through a process called “Labor Certification” (under the acronym “PERM”) run, not by the U.S. Citizenship and Immigration Services ("USCIS"), but by the U.S. Department of Labor (“DOL”). Labor Certification is in most employment-based cases a prerequisite to the ability to file for a “Green Card.”

The regulation (20 C.F.R. § 656.1(a)) requires that the sponsoring employer must conduct certain prescribed types of recruitment aimed at determining that:

“(1) There are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work; and

(2) The employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed.”

This is commonly referred to as the required “good faith test” of the labor market. If the recruitment process is fair and open to all qualified workers if no qualified and interested U.S. workers apply for the job, and if the foreign worker is himself or herself qualified, the employer proceeds to apply for a PERM Labor Certification. Once the Labor Certification is “certified” – not by USCIS but by DOL – it is valid for only 180 days. Before the end of that 180 days, the sponsoring employer must file with the USCIS a Form I-140 Petition for Alien Worker, to start the so-called “Green Card” process.

So What’s the Catch?

The catch? The DOL and the USCIS believe that if the foreign worker is a relative of an owner of the business, or is him/herself a part-owner of the business, there is a presumption that the recruitment might not really be fair and open, and that U.S. workers could be disadvantaged. Establishing a fair and evenhanded recruitment process is of the utmost importance. This presumption is rebuttable but ever-present.

In fact, the ETA-9089 PERM application form (which ultimately is signed under penalty of perjury) specifically asks, in the infamous Question C(9): “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, partners, corporate officers, or incorporators, and the alien?”

If the answer should be “Yes,” the employer answers “No” at its (and the foreign worker’s) peril. It is not unusual for the USCIS, AFTER a PERM process in which the issue was never even raised, to spot an undisclosed familial relationship or an undisclosed ownership or control issue, and not only deny the PERM-based I-140 Petition, but send the PERM back to the Department of Labor for revocation or invalidation based on a finding of fraud.

Worse, in the past, one could at least argue that distant cousins, in-laws, etc., shouldn’t really be included in the (undefined) “familial relationship” rubric. No longer. The Department of Labor has clarified, as of July 28, 2014, that it defines “familial relationship” in the broadest and most inclusive possible terms, to include “any relationship established by blood, marriage, or adoption, even if distant [including] cousins of all degrees, aunts, uncles, grandparents, and grandchildren . . . . [and] relationships established through marriage, such as in-laws and step-families.”

Disclosing family relationships, or part ownership or control does not guarantee a denial of a PERM. It does, however, create a high hurdle to clear to establish that the job opportunity is bona fide, and “the job opportunity has been and is clearly open to qualified U.S. workers.” It can also attract an “audit” of the filed PERM, delaying the process by a year or more.

On the other hand, NOT disclosing such factors virtually guarantees a denial or a revocation if the true facts are discovered. Other penalties can apply, including debarment from further PERM filings for a period of time.

In our practice, we have been able in a number of cases to convince the Department of Labor that a job opportunity was bona fide, notwithstanding a “Yes” answer to the above question. Regrettably, we have also seen a number of fraud findings and denials (luckily not in any of our cases) when USCIS has been convinced that the employer should have checked the relevant box “Yes” instead of “No.”

The “takeaway” is that in a system where family immigration quotas are seriously backed-up, or where there are relatives who can’t qualify in any family-based category, it may be worth considering an employment-based alternative. But don’t commit fraud, even just by way of omission, in your eagerness to get your relative to the Promised Land, on the assumption that nobody will ever figure out the truth. That is a recipe for disaster.