Can my relative petition me for an employment-based green card?

Can my relative petition me for an employment-based green card?

Dear Attorney Gurfinkel:

My aunt owns a care home, and wants to petition me as a caregiver.  However, I was told that employers cannot petition relatives for green cards through labor certification or PERM.  Is that true?  Or is it possible for relatives to petition other relatives for employment-based green card?

Very truly yours,

MJ

Dear MJ:

There is nothing wrong or illegal about relatives petitioning other relatives through an employer-sponsored green card, as long as the job is real and all the other requirements are met.

The websites of both the Department of Labor (DOL) and USCIS confirm that relatives can legally petition family members for employment-based green cards. In fact, on my TFC show, Citizen Pinoy, I featured a case where a sister petitioned her younger brother as her office manager.  Not only was the green card approved, but he is now a U.S. citizen!

According to DOL, family relationship includes, “any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. . .”  Therefore, on the forms where it asks “is there a familial relationship between the foreign worker and the owners . . .,” you would merely check the “yes” box.

Also, the employer “must be able to demonstrate the existence of a bona fide job opportunity, i.e. the job is available to U.S. workers.”  However, this is a requirement in any PERM case, whether the employer and employee are related or not.  DOL further confirms, “A familial relationship between the alien and the employer does not establish the lack of a bona fide job opportunity per se,” meaning a family relationship does not automatically disqualify the case. It’s just DOL wants to make sure it is a legitimate, bona fide job opportunity at which the alien will eventually work, rather than it being a “job of convenience”.

The USCIS also confirms the legitimacy and legality of relatives petitioning family members through labor certification, based on affidavit of support requirements.  Ordinarily, only family-based petitions require an affidavit of support.  No affidavit of support is usually required for employment based petitions. However, in an employment setting, if a relative owns at least 5% of the company, an affidavit of support is required. So, if it were “illegal,” why would USCIS allow such a petition, but just require an affidavit of support?

And people have a lot of misunderstandings about employment-based petitions:

  • The employer does not need to be a Fortune 500 company. Even small businesses can petition workers if they have the “ability to pay,” meaning they can afford to pay the wage.
  • The job does not need to be college level. Even a caregiver or housekeeper can qualify for a green card through an employer’s petition.  And the waiting time (or priority date) is the same whether the job is unskilled, skilled, or college level.

If a Filipino has a business in the U.S. with a legitimate job opening, and a relative with education or experience for that job, they may want to consider sponsoring that relative to fill the job position, whether the relative is in the U.S. or back home in the Philippines. But you should consult with an attorney, who can evaluate the case, to determine if the requirements are met, and the relative has a chance,

Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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