The short answer to that question is yes. However, as shown by the recent case released by the Board of Alien Labor Certification Appeals (BALCA),Matter of Palm Café Restaurant,the answer is not that simple. AILA Doc. No. 16061303 (June 7, 2016). In adjudicating the appeal of a denial of PERM labor certification, BALCA has determined what would be considered a “bona fide job opportunity” under the PERM process, regardless of the familial relationship between the employer and the employee.
The Program Electronic Review Management (PERM) Process is required for those employers petitioning under the EB-2 and EB-3 preference categories. Before the EB-2 and EB-3 petitions can be filed for an employer to sponsor a beneficiary employee for Legal Permanent Resident status, employers must obtain the PERM labor certification from the Department of Labor (DOL).
This is an attestation-based program, through which the employer would attest that:
- At least the prevailing wage would be paid to the employee,
- The wage was not calculated based on commissions, bonuses, or other incentives,
- He/she has enough funds available to pay the wage promised to the employee,
- The employee will be put on payroll when he enters the U.S.,
- No unlawful discrimination was involved in the hiring process,
- The job opportunity is available not due to any lock out, strike, or labor dispute,
- The job opportunity’s terms are in compliance with federal, state, and local laws,
- The job opportunity has been and is clearly open to any U.S. worker,
- The U.S. workers were rejected for lawful, job-related reasons,
- The job opportunity is for full-time, permanent employment.
For quick overview of the PERM Labor Certification, please visit our webpage on PERM.
Matter of Palm Café Restaurant
InMatter of Palm Café Restaurant,the Certifying Office (CO) denied the Employer’s labor certification application because it did not meet the 8th attestation above, that the job has been and is clearly open to any U.S. worker. The CO found that because the beneficiary employee was the brother of one of the “husband-and-wife owners” of the business, and the beneficiary was possibly an integral part of the employer’s business, the job opportunity was never clearly open to the U.S. workers. Therefore, it failed the 8th attestation.
However, BALCA disagreed and looked at the factors brought up in MMB Stucco, LLC, stating that “when determining whether a bona fide job opportunity exists, the CO should consider the “totality of the circumstances.”2011-PER-00715, PDF at 4 (BALCA May 7, 2012) (citing 1989-INA-00228, PDF at 8-10 (BALCA July 16, 1991) (en banc).
The Board considered the nine factors in MMB Stucco:
- Whether the employee is in the position to control or influence hiring decisions regarding the job
- Whether the employee is related to the corporate directors, officers, or employees
- Whether the employee was an incorporator or founder of the company
- Whether the employee has an ownership interest in the company
- Whether the employee is involved in the management of the company
- Whether the employee is on the board of directors
- whether the employee is one of a small number of employees
- Whether the employee has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application, and
- Whether the employee is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the employee.
The Board concluded that most of these factors are inapplicable to the employee in this case, with the exception of the second and ninth factors. Regarding the ninth factor, BALCA concluded that the employee is not “so inseparable” that the employer would be unlikely to continue the operation without the employee. There are many other chefs in the restaurant that could take over the position if the employee terminates his position. The Board agreed with the CO on the second factor, that the employee was indeed related to the owner of the restaurant. However, the Board held that mere relationship to the owner, without more, is not enough to prove the lack of a “bona fide job opportunity.”
However, employers should take note that the BALCA undergoes a highly fact-intensive analysis in Matter of Palm Café Restaurant. If you are a small business employer thinking about hiring your foreign national relative as an employee,Zhang-Louie, Immigration Legal Counsel can help you take apart your own set of facts and closely analyze whether your organizational structure and hiring process are sufficient for the CO to grant your PERM Labor Certification.