By: Richard Hanus
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When an Employer Petitions a Relative for Green CardPublished June 19, 2016
In the vast majority of cases where an employer looks to facilitate permanent resident (green card) status for a foreign national, the employer, as a first step, will generally be required to document the unavailability of U.S. workers to fill the position at issue. Whether that foreign national is in the U.S. or still abroad, the employer will usually need to carry out a “good faith” test of the labor market – per Department of Labor regulations and via print ads and sometimes electronic media – and document that efforts to fill the position being offered have failed. This step is usually the hardest for employers to satisfy given the regulatory minefield at play and the uncertainty as to the type workers that make up the US labor market at the time of “recruitment”.
When the employer has a familial relationship with the petitioned foreign national, there exists an institutional, default assumption that the foreign national family member is getting special treatment in order to facilitate their green card status. Thus, the employer has the burden “to demonstrate the existence of a bona fide job opportunity, i.e. the job is available to all U.S. workers”. The issue comes to the attention of government decision-makers when the box on the Department of Labor application in question inquiring into the existence of a familial relationship is checked “yes”. From there, the employer must be ready to address a variety of concerns that may arise. (It should be noted that while employers seeking to petition registered nurses and physical therapists need not prove the unavailability of U.S. worker, portions of the relevant Department of Labor application must be submitted including the section where the familial relationship is inquired upon).
In cases where the worker has a familial relationship to company ownership, the U.S. Department of Labor will look to a number of factors in determining whether the job opportunity was “bona-fide” and the process was premised on a good faith test of the labor market, such as whether the foreign national:
1) is in a position to control or influence hiring decisions pertaining to the position for which the 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 with 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 position that appear to be specifically tailored to specialized or unusual job requirements,
9) is so integral to the petitioning employer due to peculiar personal attributes that the employer’s operation would not be viable without them.
In assessing whether there indeed exists a bona fide job opportunity, government decisionmakers will look to the totality of the circumstances, and with no one single factor controlling the outcome of the analysis. In sum, employers have every reason to believe a petition on behalf of a relative will have a chance at approval as long as not too many of the concerns cited above are part of the relationship and transaction.PUBLISHED June 19, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois