FAMILIAL RELATIONSHIP” WITHIN THE CONTEXT OF PERM LABOR CERTIFICATION APPLICATION

By: Rabindra K. Singh, Esq.

Introduction

As compared to other myriad lurking issues, the issue of family relationship between a sponsored Foreign National and the sponsoring Employer does not arise that frequently within the context of Permanent Labor Certification Application. However, when it does, it should be dealt with utmost care and attention because not doing so may invite a supervised recruitment, and possibly a denial.

Few cases have dealt specifically with the familial relationship issue between a sponsored Foreign National and the owners, stockholders, partners, corporate officers, or incorporators of the sponsoring Employer.

In a recent decision, Palm café Restaurant, 2012-PER-01446 (BALCA June 7, 2016), the Board of Labor Certification Application (Board), dealing with the issue of family relationship between the owners of the sponsoring Employer and sponsored Foreign National, imported and applied the “totality of circumstances” test in determining whether the Employer made a genuine determination of foreign labor by sponsoring the Foreign National, and whether a genuine job opportunity existed for American workers to compete for the job opening.

The “totality of circumstances” test was previously laid down by the en banc panel of the Board in the landmark pre-PERM decision of Matter of Modular Container Systems, Inc., 89-INA-228 (BALCA July 16, 1991). The Board in Modular Container specifically dealt with the ownership interest issue of the sponsored Foreign National in the sponsoring organization.

Declaring Familial Relationship on a PERM Labor Certification Application

Before delving into the specifics of the “totality of circumstances” test as was applied in the Palm Café by the Board, and before finding and understanding the definition of “familial relationship”, it is important to understand why an Employer is required to declare the familial relationship on the Permanent Labor Certification Application (ETA Form 9089).

Labor Certification using the Department of Labor’s (DOL) Program Electronic Review Management (PERM) system is an attestation-based program. Among other attestations, the prospective Employer sponsoring a Foreign National for an employment-based Lawful Permanent Resident (LRP) status[1] (commonly referred to as “Green Card”) must attest that the job opportunity described in the Labor Certification Application has been and is clearly open to any U.S. workers.

Accordingly, the regulations require the Employers to conduct recruitment steps in good faith to recruit U.S. workers prior to submitting the ETA Form 9089. The DOL’s Certifying Officer (CO) may certify the Labor Certification Applications only after finding that there were no able, willing, qualified, and available U.S. workers to fill the position at the time the Labor Certification Application was filed. Therefore, the CO is required to verify the attestations made by the prospective Employer on the Form ETA-9089 by determining whether or not the Employer conducted a good faith test of the domestic labor market before submitting the Labor Certification Application.

In particular, regulations require the Employer to certify, under Penalty of Perjury, to the conditions of employment listed on the Form ETA-9089. See 20 CFR Section 656.10(c). Failure to attest to any of the ten (10) conditions listed under Section 656.10(c) results in the denial of the Labor Certification Application. One of the listed conditions requires the Employers to attest that the job opportunity has been and is clearly open to any U.S. worker.[2]Further, the regulations address the potential influence and control over a job opportunity by the named Foreign National. Specifically, 20 CFR Section 656.17(l) states that:

“If the Employer is a closely held corporation or partnership in which the Foreign National has an ownership interest,
or if there is a familial relationship
between the stockholders, corporate officers, incorporators, or partners, and the Foreign National,
or
if the Foreign National is one of a small number of employees, the Employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers…” [emphasis supplied]

Thus, if there exists a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the Foreign National sponsored by the Employer; the Employer must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to U.S. workers. In order to provide the CO the opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an Employer
must
disclose any familial relationship(s) by marking “yes” to Question C.9[3] on the ETA Form 9089.
Note that the failure to disclose familial relationships when responding to Question C.9 is a “material” misrepresentation, and, may therefore be grounds for denial, revocation or invalidation in accordance with the DOL’s regulations
.

Definition and Scope of Familial Relationship

The next basic issue to consider and analyze is the existence of the type of family relationship between the stockholders, corporate officers, incorporators, or partners, and the Foreign National. More specifically, when should an Employer mark “yes” when responding to the Question C.9 on the Form ETA-9089.

Surprisingly, or not surprisingly, the regulations do not define the term “familial relationship.” So, where to look further? The DOL, through its FAQ[4] defined the term ““familial relationship” by stating the following: “A familial relationship includes
any
relationship established by blood, marriage, or adoption,
even if distant
.

The FAQ listed few examples what it meant by “distant relationships.” For example, the definition of familial relationship includes cousins of all degrees, aunts, uncles, grandparents and grandchildren. It also includes relationships established through marriage, such as in-laws and step-families. Further, the FAQ stated that the term “marriage” will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.

Additionally, the FAQ provided guidance that a familial relationship between the foreign national and the Employer does not establish the lack of a bona fide job opportunity perse. Ultimately, the question of whether a bona fide job opportunity exists in situations where the foreign national has a familial relationship with the Employer depends on “whether a genuine determination of need for foreign national labor can be made by the Employer corporation and whether a genuine opportunity exists for American workers to compete for the opening.

Therefore, the Employer must disclose such relationships, and the CO must be able to determine that there has been no undue influence and control, and that these job opportunities are available to U.S. workers. When the Employer discloses a family relationship, and the Labor Certification Application raises no additional denial issues, the Employer will be given an opportunity to establish, to the CO’s satisfaction, that the job opportunity is legitimate and does not pose a bar to certification. The CO will consider the Employer’s information and the “totality of the circumstances” supporting the Labor Certification Application in making this determination.

“Totality of Circumstances” Test

So, what does the “totality of circumstances” test entails, and what all factors the CO needs to look into in order to determine whether or not the Employer made a genuine determination of the need for foreign labor, and whether a genuine opportunity exist for American workers to compete for the job opening.

As the Board laid down in Modular Container, the CO
must
consider, among other factors, whether the Foreign National:

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 Foreign National.

Thus, the above listed factors are not exclusive, and the CO should also take into consideration the Employer’s compliance and good faith in the Labor Certification Application process. Further, no single factor, such as a familial relationship between the Foreign National and the Employer, shall be controlling. More so, the Employer can document and provide, when asked, any additional information which may support good faith test of the U.S. labor market.

Briefly going through the facts and analyzing how Board addressed and resolved the issue of familial relationship in Palm Café can provide a good understanding on how the above-mentioned factors might come into play.

In Palm Café, the Employer sponsored one his relatives for the position of Chef and Head Cook. The Labor Certification Application was later selected for an Audit. Among other things, the Audit letter requested for certain business records to determine whether the foreign worker had influence and control over the job opportunity. Some of the requested information and documentation included the following: documentation of the U.S. workers who applied for the position; copies of Employer’s articles of incorporation, partnership agreements, state or federal documentation in connection with the establishment of the sponsoring Employer, and business licenses; an outline of the corporate structure and list of officers and partners; a statement of the employees with payroll sign-off responsibility; a statement describing familial relationships between parties with ownership interests and the foreign worker; a financial history of the Employer; the names of the Employer’s officials responsible for hiring or having control or influence over hiring decisions, etc.

Later, finding out that the sponsored employee is the brother of one of the husband-and-wife owners; the CO denied certification stating that the DOL was unable to determine whether the job opportunity was open and available to U.S. workers. Specifically, the CO cited the following factors for concluding that the job opportunity was not open and available to U.S. workers: (1) the Foreign National is the brother of one of the owners; (2) the Foreign National is “
possibly
an integral part of the Employer’s business”; and (3) “
conceivably
the Employer’s business operations cannot continue without the foreign worker,” which gives the Foreign National “considerable control and influence as to how the Employer’s restaurant is operated.

The denial, however, did not raise any objection to the Employer’s good faith recruitment efforts in testing the United States labor market. Siding with the Employer’s argument, and based on the documentation provided following audit request, the Board agreed with Employer’s attestation that no U.S. worker responded to the newspaper advertisements and SWA job posting.

Finding the case analogous to a post-Modular Container decision, Altobeli’s Fine Italian Cuisine, 1990-INA-130 (BALCA Oct. 16, 1991),[5] the Board found eight (8) out of the nine (9) factors, as contained in the “totality of circumstances” test, not applicable in Palm Café.

Specifically, the Board found that: (1) the Foreign National did not control or influence Employer’s hiring decisions; (2) the Foreign National was not an incorporator or founder of the company; (3) the Foreign National did not have an ownership interest in the company; (4) the Foreign National was not on the board of directors; (5) the Foreign National was not one of a small number of employees; and (6) the Foreign National did not have qualifications identical to specialized or unusual job duties and requirements stated in the Application.

The Board also concluded that two other factors – whether the foreign national was involved in the management of the company, and whether the foreign national was inseparable from the sponsoring Employer – also were not applicable here. Although the organizational chart provided by Employer indicated the Head Cook position in charge of several line cooks, there was no evidence in the job description, submitted by the Employer during the audit that the Head Cook would engage either in management activities or payroll activities. In addition, the Board agreed with the Employer that the restaurant can function without the foreign national, and there were other cooks who could assume the duties of the Head Cook.

Conclusion

Based on the foregoing, when deciding whether or not to pursue and submit a Labor Certification Application on behalf of a Foreign National who happens to have a family relationship with the owners, stockholders, partners, corporate officers, or incorporators of the sponsoring Employer, one should take into consideration all nine (9) factors of the “totality of circumstances” test. No single factor can and should be controlling. Before doing so, Employers and/or Practitioners should take a careful look at the definition of “familial relationship.” Employers and/or Practitioners should also keep into their audit file any and every document/information which could suggest that there exists a genuine job opportunity for which the Employer conducted the labor market test in good faith. Last but not the least; it is worth remembering that the failure to disclose familial relationships on the Labor Certification Application is a “material” misrepresentation, and, may therefore be grounds for denial, revocation or invalidation of the Labor Certification in accordance with the DOL’s regulations.

[1] or for an Immigrant Visa to be issued aboard at the U.S. Consular Post abroad.

[2] See 20 CFR Section 656.10 (c)(8)

[3] 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, corporate officers, incorporators, or partners, and the alien?

[4] See “PERM FAQ” (July 28, 2014).

[5] The Board found that there was a bona fide job opportunity where the alien’s brother and sister-in-law owned 75 percent of the Employer’s stock.