Can relatives petition family members for labor certification?

Dear Atty Gurfinkel:

My American Citizen sister would like to petition me, but it would take many, many years to get a green card through a family petition. She also has a very successful business and would like to petition me as her employee through an employment-based petition.

Is there anything wrong or illegal for a relative to petition a family member for a green card through labor certification?

Very truly yours,

SF

Dear SF:

There is nothing wrong or illegal about one family member petitioning another family member for a green card through labor certification as long as:

1. The employer is financially able to pay the alien the "prevailing wage" for the job;

2. The alien is qualified for the job, based on college education or previous experience;

3. The employer first makes a good faith effort to recruit qualified American workers for the job, but is unable to find any American worker who is ready, willing and able to perform the job;

4. The job must be real. The job opening must be a true, legitimate, bona fide job opportunity. Under no circumstance can it be fixed, fake, fraudulent, or merely a "favor"; and

5. The alien must actually work for the employer when legally able to do so.

In fact, even the laws concerning affidavits of support for employment based petitions specify that family members are allowed to petition relatives, including husbands, wives, fathers, mothers, children, or brothers or sisters. The law states that if such a relative has a "significant ownership interest" in the petitioning company (i.e. owns more than 5 percent of the company) then that relative needs to submit an affidavit of support in connection with the employment based petition. Think about it: if it were "illegal" for relatives to petition family members, then why would there be a law on the books, specifically allowing it, and merely requiring that the relative also submit an affidavit of support?

There are also cases from the Board of Alien Labor Certification Appeals (BALCA), allowing family members to petition relatives for labor certification. In one case, BALCA stated that a close family relationship between the employer and employee does not, standing alone, establish that the job is not bona fide or available to US workers.

While a close family relationship certainly increases the level of scrutiny (or suspicion), family relationship between the employer and employee is only one factor to be considered. If the employing relative genuinely needs an employee with the alien’s qualifications, the job has not been tailored (or customized) to the alien so that it appears to be a "job of convenience", and the employer has not been able to find a qualified US worker after good faith recruitment efforts, then a family relationship does not, per se (or automatically), require that labor certification be denied.

As stated by BALCA: "We did not hold nor did we mean to imply. . . that a close family relationship between the alien and the person having hiring authority, standing alone, establishes, that the job opportunity is not bona fide or available to US workers. Such a relationship does require that this aspect of the application be given greater attention. But, in the final analysis, it is only one factor to be considered. Assuming that there is still a genuine need for an employee with the alien’s qualifications, the job has not been specifically tailored for the alien, the Employer has undertaken recruitment in good faith and the same has not produced applicants who are qualified, the relationship, per se, does not require denial of certification".

In your situation, as long as you and your relative play by the book, follow all the rules, and are not creating a "job of convenience", then it is permissible for a relative to petition a family member for labor certification, bearing in mind that the case will be intensely scrutinized and investigated by the government to make sure it is real. But if it is a real job, then the law allows it.

* * *

WEBSITE:www.gurfinkel.com

Four offices to serve you:

PHILIPPINES: 894-0258 or 894-0239

LOS ANGELES: (818) 543-5800

SAN FRANCISCO: (650) 827-7888

NEW YORK: (212) 808-0300.