If I own a company can I file a PERM for a family member or a relative?
By: Shah Peerally Esq.
This is a question that is frequently asked. There are no real simple answer however, it is something that can actually be done. Indeed you might be able to file a PERM labor certification for a relative although it is not recommended. There are many things which need to be considered and some of those are laid out in this BALCA decision Matter of MMB Stucco.
20 C.F.R. § 656.17(l). Section §656.17(l) states:
If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an auditmust be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers, When determining whether a bona fide job opportunity exists, the Board must consider the totality of the circumstances, considering, among other factors, whether the alien:
1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
2. Is related to the corporate directors, officers, or employees;
3. Was an incorporator or founder of the company;
4. Has an ownership interest in the company;
5. Is involved in the management of the company;
6. Is on the board of directors,
7. Is one of a small number of employees;
8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien~ 5 ~
Good Deal, Inc., 2009-PER-00309, PDF at 4-5 (Mar. 3, 2010) (citing Modular Container Systems, Inc., 1989-INA-228, PDF at 8-10 (July 16, 1991) (en banc) (footnotes omitted)). The Board should also consider the Employer’s compliance and good faith in the application process Id. No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling. Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77356 (Dec. 27, 2004).
According to this decision it is therefore possible to file for a family member or relative. However, we recommend our readers not to attempt this without strictly meeting the requirements. For more information feel free to call us at 510 742 5887.
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