Applying for PERM Labor Certification for a relative

The regulation at 20 C.F.R. § 656.10(c)(8) provides that an employer must attest that “[t]he job opportunity has been and is clearly open to any U.S. worker.” If an employer is a closely held corporation, partnership, or sole proprietorship, a presumption arises that the job is not clearly open to U.S. workers when the sponsored alien has a familial relationship with the owners, stockholders, partners, corporate officers, or incorporators of the employer. See Transmark Real Estate, 2011-PER-00475 (June 8, 2012); see also 20 C.F.R. § 656.17(l).

The regulation at 20 C.F.R. § 656.17(l) provides:
In order to determine whether a bona fide job opportunity exists, the Board must weigh 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.

In the case below BALCA affirmed the denial of the PERM
In reviewing the totality of the circumstances, BALCA finds that the position was open to U.S. workers and that, in the absence of bad faith recruitment, the employee’s influence over hiring cannot be asserted simply because his mother owns the company. (See Matter of Tyrell Limited16102702 10/21/16)