If you run a business in the U.S., you may be tempted to bring a family member who is a foreign national to the U.S. by sponsoring an employment-based green card for them. This can be a clever and effective strategy, but you will need to meet certain requirements to convince the U.S. Department of Labor that the application is legitimate. The Department of Labor will want to make sure that you are not just trying to work around the limits on family-based green cards for a more distant relative who does not qualify. Also, an employment-based green card may bring a foreign national to the U.S. much sooner than a family-based green card, which is another incentive to abuse the process.
Under the PERM labor certification process, any U.S. employer must first seek employees within the U.S. labor market. They must make recruitment initiatives in good faith and look for any qualified and available U.S. workers who could fill the position. The Department of Labor will be especially likely to suspect that you have not gone through this process in good faith if you are applying for an employment-based visa on behalf of a family member.
You will need to identify the sponsored foreign national as a family member on the PERM application if they meet the Department of Labor definition for a family member. This extends more broadly than you might expect and covers any relationship based on blood, marriage, or adoption. Thus, a cousin of any degree is considered a family member, as is any stepchild, stepparent, or in-law. Same-sex relationships are included if same-sex marriage was valid in the place where the marriage occurred. Failing to correctly respond to this question and concealing a family relationship will cause the Department of Labor to deny the application or revoke approval that was previously granted.
In determining whether the application was made in good faith, the Department of Labor will consider the totality of the circumstances. There must be a legitimate job being offered, for which the U.S. employer needs to hire an employee. The employer may need to provide documents to establish this point. The sponsored foreign national’s qualifications must be appropriate for the job and must be genuine. You should not forge employment or educational records for the foreign national. If you do, you may face penalties beyond the denial of the PERM labor certification, such as a ban on hiring other foreign nationals for a certain period.
The employer also must show that they objectively evaluated U.S. candidates, but no qualified candidates applied for the job. You may have a stronger case for meeting this requirement if you retained a third party to help you screen applicants.
Certain red flags will raise the suspicions of the Department of Labor if they are present in your situation. The Department of Labor will be reluctant to grant a PERM certification if the sponsored foreign national founded the U.S. company, owns or partly owns the company, already helps manage the company or serves on its board of directors, will influence hiring decisions, has qualifications uniquely suited to the alleged job, or otherwise will play an essential role in the operation of the company.
