Sponsoring a foreign worker through the PERM labor certification process can be a crucial step toward permanent residency in the United States. But when that foreign worker is related to the business owner or someone in a position of authority, the case becomes far more complicated. Filing a PERM for a family member isn’t illegal, but it carries heightened scrutiny, audit risk, and potential denial if not appropriately handled.
Here’s what U.S. employers need to know before moving forward.
What Is PERM and Why Does Relationship Matter?
PERM, short for Program Electronic Review Management, is the U.S. Department of Labor’s (DOL) process for certifying that no qualified U.S. worker is available for the job offered to a foreign national. This certification is required for most employment-based green card categories. Learn more at the DOL’s official PERM program site.
Employers must show that they conducted a good-faith recruitment campaign and that no able, willing, and qualified U.S. workers were available. However, when the person being sponsored is a relative, the DOL may question whether the job was genuinely available to the public or prearranged for the foreign national.
When Must You Disclose a Family Relationship?
Employers are required to disclose any familial ties between the foreign worker and company stakeholders by marking “yes” to Question C.9 on ETA Form 9089. According to DOL guidance, the definition of familial relationship for the purposes of the PERM application defines a familial connection as “any type of relationship of blood, marriage, adoption, or distant relation.” This definition includes close family members, cousins of all degrees, grandparents, grandchildren, and relationships established through marriage, including same-sex marriages. The audit can also happen due to the familial relationship between owners, corporate officers, and even corporate directors.
Disclosing this relationship allows the Certifying Officer (CO) to evaluate whether a bona fide job opportunity exists. As noted in Matter of Modular Container, 1989-INA-228, the key question is whether a genuine need for foreign labor exists and whether a real opportunity was available to U.S. workers.
Failure to disclose a qualifying relationship may be considered a material misrepresentation, which can result in denial, revocation, or even invalidation of an approved PERM under 20 C.F.R. § 656.17(l).
Why PERM Cases Involving Family Members Trigger Audits
When a family relationship exists, the DOL’s Office of Foreign Labor Certification (OFLC) is likely to issue an audit or place the case under supervised recruitment.
These reviews are used to determine whether:
- The job was genuinely open to U.S. workers;
- The foreign worker had any influence over the recruitment process;
- Job requirements were tailored to fit the foreign worker’s qualifications;
- U.S. applicants were fairly evaluated and rejected for lawful reasons.
More information on audits and program compliance can be found at flag.dol.gov and the Foreign Labor Certification site.
How to Overcome an Audit Involving a Family Member
While an audit is serious, it’s not an automatic denial. Employers can still obtain certification if they can prove that:
- Recruitment was legitimate and followed all required steps outlined in the ETA 9089 instructions;
- The job was truly open to qualified U.S. applicants;
- The foreign national had no undue influence on hiring or employment decisions.
Employers should be prepared to submit interview records, rejection reasons, organizational charts, and statements clarifying how hiring decisions were made.
Legal Guidance Matters, Now More Than Ever
Filing a PERM for a family member is legal, but it must be handled with extreme care. Even small errors, such as failing to disclose a relationship or conducting incomplete recruitment, can lead to audits, denials, or long-term bars to green card eligibility.
An experienced immigration attorney can help you:
- Navigate the complex requirements of 20 CFR Part 656;
- Prepare strong documentation to respond to audits or supervised recruitment;
- Ensure transparency and compliance with ETA Form 9089 instructions;
- Explore alternative options like the EB-2 National Interest Waiver or L-1 Intracompany Transfer Visa, which may avoid PERM altogether.
The Department of Labor’s primary concern is protecting U.S. workers. Familial relationships can raise legitimate concerns about fairness, but a well-documented, transparent, and legally sound filing can still succeed.
Berardi Immigration Law has extensive experience guiding employers through complex PERM cases, including those involving family members. We can help you protect your business, stay compliant, and achieve your immigration goals with confidence.
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