Can I work for a family member’s US company and be sponsored for a EB-3 or EB-2 green card through the PERM process?

Short answer: it is possible, but a lot more difficult.

Long answer: Employer-sponsored EB-2 or EB-3 green cards are only possible with a positive labor certification through the PERM process, which asks the U.S. company to first test the labor market and see if there are any qualified U.S. workers who can fill the job. Only when no suitable candidate is identified after a designated period of recruitment can the employer gain the permission to sponsor the foreign worker for that particular position. Getting a positive PERM decision becomes much more difficult if you have a family relationship with a senior decisionmaker of the company, or if you are an investor in that company yourself.

Your PERM application is likely to trigger an audit if any of the three conditions apply:

(1) if the foreign worker has an ownership interest in a closely held company;

(2) if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the foreign worker; and

(3) if the company is small (with very few employees).

Under an audit, the employer has a heavy burden to convince the officer that a “bona fide job opportunity” existed and that it was truly available to all U.S. workers (as opposed to being “staged” for that foreign worker). The employer must provide enough evidence to overcome the presumption that the foreign worker had an influence in the job offer.

To succeed in a PERM application in these circumstances, the employer will try to convince the officer (and the Board of Appeals, if applicable) that the totality of the circumstances weigh towards a finding that a bona fide job opportunity existed. Relevant questions include:

• Is the foreign worker in a position to control or influence hiring decisions regarding the job?
• Is the foreign worker an incorporator or founder of the company?
• Does the foreign worker have an ownership interest in the company?
• Is the foreign worker involved in the management of the company?
• Is the foreign worker one of a small number of employees?
• Does the foreign worker have qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application?
• Is the foreign worker so inseparable from the employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operations without the foreign worker?
• Did the employer engage in a good faith recruitment process?

Depending on how many answers to these factors point towards the presumption or against the presumption, the PERM application may or may not be successful.

In conclusion, in cases where the foreign worker is a family member of a senior company decisionmaker or holds ownership shares of the company, it is evident that securing a PERM approval will be difficult and could result in significant delays by triggering audits (and, if applicable, appeals upon denial). It is important for foreign workers and employers to accurately assess the costs and risks upon taking this path, and is strongly counseled to discuss with an attorney to make a fully informed decision.