Reminder: Employers Must Disclose Familial Relationships on PERM Applications20 Mar 2023
When completing the ETA form 9089, application for permanent employment certification (PERM labor certification), employers may overlook a small but important question on the form: “[I]s there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien?” Before breezing past this question, parties should understand the complete scope of the question and the potentially severe consequences of failing to answer this question correctly. Importantly, as the PERM labor certification is signed under the penalty of perjury, employers should ensure every answer on the form is accurate.
Definition of Familial Relationship
The purpose of the PERM process is to protect U.S. workers. 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, the company’s recruitment efforts can be rendered suspect. Therefore, the PERM labor certification requires the disclosure of any familial relationship between the employer and prospective employee.
While the extent of what constitutes a “familial relationship” is not defined by regulation, in 2014, the Office of Foreign Labor Certification (OFLC) has updated its frequently asked questions (FAQs) to define the scope of familial relationship. Per DOL, a “familial relationship” includes “any relationship established by blood, marriage, or adoption, even if distant.” This broad definition includes common relationships like siblings, parents, aunts, uncles, and grandparents and distant relationships including cousins of all degrees (e.g., a third cousin once removed), in-laws, and stepfamilies. Given this broad definition of familial relationships, employers should take care to ensure every answer on the form is accurate.
Impact of Familial Relationships on PERM
A familial relationship is not necessarily fatal to an employer’s PERM filing, but it increases scrutiny by the DOL of the application. The DOL typically will audit a case when the employer has properly disclosed the familial relationship on form 9089. To overcome the audit, the employer must establish that there is bona fide job opportunity for U.S. workers, and that the employee did not have any undue influence in the recruitment process. As such, prior to proceeding with such a case an employer should consult with an experienced immigration attorney.
Consequences of Failing to Disclose
Failure to disclose a familial relationship on the PERM labor certification can result in severe consequences. Even if the DOL or the U.S. Citizenship and Immigration Services (USCIS) do not discover the undisclosed relationship initially, a later discovery still can significantly impact the employer and the employee. Upon discovery of an undisclosed familial relationship, the USCIS likely will revoke an individual’s approved I-140 petition, even years after its approval. A revoked I-140 petition typically will cause an individual to lose all the benefits of an approved I-140, including the ability to retain the priority date from the petition. Depending on the individual’s country of birth, this can delay an individual’s path to permanent residency in the United States by several years.
Moreover, if the USCIS revokes an I-140 due to an undisclosed familial relationship, the USCIS may allege that there has been a material misrepresentation, resulting in a finding of fraud. A fraud finding can permanently bar an individual from being admissible to the United States.
The responsibility to disclose a familial relationship on form 9089 is serious, and failure to disclose a familial relationship could result in severe consequences for the parties. The attorneys at the Murthy Law Firm are available to provide guidance and representation on this issue and other PERM matters.
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