DOL Issues FAQ on Familial Relationships20 Aug 2014
The frequently asked questions (FAQs) maintained by the Office of Foreign Labor Certification (OFLC) have been updated to provide some insight on the issue of familial relationships between the beneficiary and the sponsoring organization in the PERM labor certification (LC) process. In particular, the updated FAQ provides guidance on how to answer the question about familiar relationships asked on the application for permanent employment certification (ETA form 9089).
PERM Inquires About Familial Relationship to Protect U.S. Workers
The purpose of the PERM LC process is to protect U.S. workers, and the U.S. Department of Labor (DOL) takes the position that, if the sponsored worker has family who own or hold certain positions with the sponsoring entity, this could render the company’s recruitment efforts suspect. The DOL has policies in place to prevent the foreign worker and/or the family member associated with the sponsoring employer from having undue influence over the recruitment process. In other words, the DOL is concerned that a family member may take measures so that no bona fide job opportunity exists for U.S. workers during recruitment, leaving the position open to be filled by the foreign worker. To help identify such potential cases, the ETA 9089 asks: “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, partners, corporate officers, incorporators, and the alien?”
Broad Interpretation of “Familial Relationship” by the DOL
Prior to the issuance of the FAQ in July 2014, there was no set definition of “familial relationship.” The DOL now clarifies that it is interpreted in the broadest of terms. Per the FAQ, “…any relationship established by blood, marriage, or adoption, even if distant” must be disclosed on the ETA 9089. More specifically, the FAQ details that “cousins of all degrees, aunts, uncles, grandparents and grandchildren … in-laws and step-families” must be identified as family members on the form.
If a Familial Relationship Exists
The DOL will typically audit a case when the employer has properly disclosed on the ETA 9089 that a familial relationship exists. In the event of an audit, the employer must evidence that “…there has been no undue influence and control and that these job opportunities are available to U.S. workers.” The DOL will then examine the “totality of the circumstances” to determine whether the relationship poses a bar to proceeding with the LC. The FAQ further notes that “… failure to disclose familial relationships or ownership interests … is a material misrepresentation and may therefore be grounds for denial, revocation, or invalidation …”
Challenge to Overcome Familial Relationship in PERM LC Filings
If a familial relationship exists, this information absolutely must be disclosed to the DOL, and it generally means that the PERM LC will face challenges. Whether or not these can be overcome depends upon a weighing of the appropriate factors. Prior to proceeding with such a case, it is important that this issue be carefully and realistically considered. The attorneys at the Murthy Law Firm are available to provide guidance and representation in such PERM matters.
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