Many foreign workers obtain their green cards by finding a U.S. employer to sponsor them for permanent residence. Most employment-based cases are completed through the Labor Certification process, which is also commonly referred to as the PERM process.
What is the PERM Process?
At first glance, the PERM process can seem quite complicated. The process requires a U.S. employer to place a series of job advertisements in various sources in order to try to recruit U.S. workers. The PERM advertisements themselves must fulfill certain content requirements, must be placed in certain avenues, and must run for a specific amount of time.
The purpose of this recruitment process (and the PERM process itself) is to confirm that there are no willing, qualified, and available U.S. workers who could fill the job that is offered to the foreign worker. Now, if the foreign worker happens to be related to the U.S. employer, the PERM process can become even trickier. The reason for this is because the U.S. Department of Labor is of the mindset that if a familial relationship exists between the employer and the beneficiary of the PERM process, it is possible that the employer’s recruitment efforts may not be exactly legitimate or valid, thereby not fulfilling the purpose of the PERM. Essentially, the DOL wants to ensure that a U.S. employer does not bend the PERM rules in order to help the foreign relative qualify for permanent residence.
How to Address a Familial Relationship
To prevent U.S. employers from extending preferential treatment to their foreign relatives, the DOL requires that all employers disclose the existence of a familial relationship on the PERM application itself, called the ETA Form 9089. Since all of the information provided on the ETA Form 9089 must be true, or the employer may face stiff penalties, this disclosure requirement is no different. However, until recently many employers were confused about whether they needed to disclose a familial relationship because they were unsure exactly what constituted such a relationship. Does the worker need to be blood relative? What if the worker is only related by marriage or adoption? These and other questions were often posed by employers who wanted to make sure they did not make a false declaration on the ETA Form 9089.
New DOL Guidance
Luckily, the DOL has provided updated guidance on this very issue. In its recent FAQ, the DOL confirmed that “familial relationship” for the purposes of the PERM process will be interpreted as broadly as possible by DOL adjudication officers. The FAQ goes on to specify that “…any relationship established by blood, marriage, or adoption, even if distant” will be considered a familial relationship and must be disclosed by the employer on the ETA Form 9089.
It is good to see the DOL provide more information to U.S. employers and immigration attorneys on exactly how the adjudication officers will interpret familial relationship. By disclosing this guidance, the DOL is helping to reduce the confusion employers experience when trying to complete the PERM process. Continue to check back with our blog for all of the latest immigration-related news.
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Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012