By Natalie McQuilkin
Did you know that if you are a US citizen or a lawful permanent resident (LPR) and you own a business based in the United States, you can sponsor your family members to work in your business?
Although it sounds like a loophole to avoid the long processing times of family-based petitions, it is entirely legal to sponsor family members to work for your business. U.S. citizens and LPR business owners across the country use this method not only to fill open positions in their businesses, but also to bring their relatives to the United States.
In fact, U.S. Citizenship and Immigration Services (USCIS) does not limit the employment-based pathways and visas with which you can sponsor your family member, which means you can apply for the H-1B visa, the O-1 visa, the L-1A visa, and more. In today's post, we are going to cover two common green card pathways (EB-2 and EB-3) and two common temporary immigrant visas (H-2A and H-2B), which Eagan lead business attorney Hannah Whaley discussed in her April webinar.
The EB-2 and EB-3 Green Card pathways. The EB-2 and EB-3 pathways are the most common ways to sponsor family members because they are employment-based green cards, meaning they provide an immediate pathway for the beneficiary to receive a green card.
The EB-2 is designed to accommodate those with a master's or doctoral degree, those with a bachelor's degree plus five years of experience, or those with exceptional ability. To meet the exceptional ability requirement, the applicant must be able to provide evidence for three of the following criteria:
- An official academic transcript showing that the beneficiary holds a degree, diploma, certificate, or similar award from an educational institution
- Letters from current or previous employers documenting at least 10 years of full-time employment
- License or certification to practice a profession
- Proof that the beneficiary has earned a higher salary than others in his or her field
- Membership in a professional association
- Recognition of achievements and/or contributions by peers, government agencies, and professional or business organizations
One important thing to keep in mind is that the family member interested in applying for the vacant position at your company through the EB-2 category must meet the EB-2 eligibility criteria when the PERM process begins, which we discuss later in this post.
While the EB-2 path is designed for those with an advanced degree or exceptional ability, the EB-3 is suited for skilled workers, professionals, and other workers.
- Skilled workers have at least two years of work experience, education, or training.
- These professionals hold a high school diploma or its foreign equivalent.
- Other workers, also known as “unskilled workers,” may have less than two years of work experience, but they must be able to demonstrate the ability to perform unskilled jobs.
Because the EB-3 category applies to a wide range of workers, many see it as a good option for sponsoring family members if their company has a job opening that does not require experience or a degree.
The PERM Process Both the EB-2 and EB-3 employment pathways require the employer to file a PERM Labor Certification. PERM is essentially designed to allow employers to hire foreign workers while ensuring that there are no U.S. workers able, willing, qualified, or available to fill the vacant position. These rules are designed to ensure that employers do not deliberately choose foreign workers over U.S. workers. This process is also very important for the Department of Labor (DOL) and USCIS when screening those who hire foreign relatives.
Submitting a PERM application is a multi-step process:
1. Identify the vacant position in your business. This must be a permanent, full-time position, and having the job title, responsibilities, and required skills for this position will be important throughout the PERM process. This position must not
tailor the position specifically to your relative's skills, because that could lead the Department of Labor to believe that you created this position for your relative. The Department of Labor wants to see that you have hired people for similar positions in the past to ensure that this is a genuine job offer.
2. Determine the prevailing wage. The prevailing wage is essentially the average wage of U.S. workers in specific locations and jobs. If you hire a foreign worker, the prevailing wage ensures that the worker is paid appropriately so as not to negatively affect the wages of U.S. workers. To determine the prevailing wage, you must submit Form ETA-9141 (Application for a Prevailing Wage Determination) to the National Wage Center. This form will require you to provide information about the job title, responsibilities, and required education and experience. Shortly thereafter, you will receive the prevailing wage determination.
3. Recruit workers. Once you have the prevailing wage, the next step in this process is to recruit workers to interview for the position. You must advertise the job opening for approximately one month, but the type of advertisement required varies depending on the job being offered. Our post on how to file a PERM breaks down the recruitment process in even greater detail. During recruitment, it’s important that you genuinely interview candidates. You’ll need to provide documentation explaining why certain candidates weren’t suitable for the open position, so it’s important to be honest throughout this process. If you interview a candidate who is better suited for the job than a family member but still choose to hire your relative, the Department of Labor will likely view this as grounds for denial.
4. Submit the PERM labor certification. If you have determined that the best candidate for the job is your relative, it is time to file Form ETA 9089 (Application for Permanent Employment Certification) with the Department of Labor. This form will require you to provide information about the job opportunity, the prevailing wage, and the foreign candidate you have chosen to hire. During this process, you must notify the Department of Labor that you have chosen to hire a family member. Justia explains that the Department of Labor's definition of family is “[broader] than you might expect and encompasses any relationship based on blood, marriage, or adoption. Therefore, a cousin of any degree is considered a family member, as is any stepchild, stepparent, or parent-in-law.” If you do not identify the beneficiary as a family member, the DOL will deny the application.
Processing Times and Next Steps
Starting in May 2024, the DOL will take between 397 and 477 days to process PERM applications. Although this may seem like a long time, it is still years shorter than the processing time for family-based petitions. In fact, once the PERM is approved, you will file Form I-140 (Immigrant Petition for Alien Workers) with USCIS. As of May 2024, the Nebraska Service Center takes 7 months to process Form I-140 for EB-2 applications, and the Texas Service Center takes 8.5 months. As for Form I-140 petitions under the EB-3 category, they take between 7.5 and 9 months to process at the Nebraska and Texas Service Centers.
Once Form I-140 is approved, your family member can adjust their status. This process will vary depending on whether they are in the U.S. or living outside the country. If they are in the U.S., they will file Form I-485 (Application to Register Permanent Residence or Adjust Status), attend a biometric appointment, and then receive their green card. If they are outside the U.S., they will file Form DS-260 (Electronic Immigrant Visa Application), attend a biometric appointment, attend a visa interview, and then receive their green card.
H-2A and H-2B Visas You can also sponsor family members through H-2A and H-2B visas. These visas are different from EB-2 and EB-3 employment-based green cards in that they do not provide a path to receiving a green card. Instead, they allow the beneficiary to work temporarily in the United States. Because of that, they do not require a PERM labor certification and instead require a temporary labor certification, which we will discuss later.
The H-2A is a temporary or seasonal agricultural visa intended for agricultural and livestock workers, landscapers, agricultural machinery operators, and others. The H-2B is a temporary visa for non-agricultural positions and includes jobs in the hospitality industry, maintenance positions, amusement park jobs, and more. Like the H-2A, the H-2B is a temporary visa. However, the work must fall under one of the following categories: seasonal need, intermittent need, peak-load need, or one-time occurrence. We discuss each of these types of temporary employment in our blog post on H-2B visas.
Temporary Employment Certification
Temporary labor certification is similar to PERM labor certification in that it requires the employer to obtain the prevailing wage and engage in recruitment. As we mentioned earlier, it is important that you demonstrate to the Department of Labor and USCIS that the job opening is not tailored to your family member's skills and that you genuinely tried to recruit U.S. workers. Now, let's look at the complete steps:
1. Obtain the prevailing wage determination. As with the PERM process, you must submit information about the job opening to the National Prevailing Wage Center so that it can determine the minimum wage you must pay a foreign worker.
2. Prepare a work order, a statement of temporary need, and Form ETA-9142B (Application for Temporary Employment Certification). You will prepare these documents after obtaining the prevailing wage determination. The work order is a document that outlines the vacant position, its duties, and the required experience. The temporary need statement is a document that requires you to specify how long you need someone to work at your business. Form ETA-9142B is the application for temporary employment and includes all the information about the vacant position, how long the applicant will be needed, and the prevailing wage determination.
3. Submit the prevailing wage determination, Form ETA-9142B, the work order, and the declaration of temporary need to the DOL.
4. Receive a notice of approval and begin the recruitment process. Once the Department of Labor approves the aforementioned documents, it is time to begin recruitment. As with the PERM process, you must demonstrate that no willing, able, qualified, or available U.S. worker is available to fill the vacant position.
5. Submit the recruitment report, wait for the temporary work certification, and file Form I-129 (Petition for a Nonimmigrant Worker) with USCIS.
What's next?
Once you have completed the temporary labor certification process, if the family member you have chosen to hire lives in the US, you can request to change their status to an H-2B visa worker by filing Form I-129. If your family member lives outside the US when you file Form I-129, he or she can apply for the H-2A or H-2B visa with the US Department of State at the US Embassy or Consulate in their country. They will then need to attend a visa interview. Once they receive the H-2A or H-2B visa, they can apply for admission with US Customs and Border Protection at a port of entry.
As of May 2024, the California Service Center takes only 15 days to process Form I-129 for H-2A visas. For Form I-129 for H-2B visas, the California Service Center is processing Form I-129 for H-2B visas within one month, while the Vermont Service Center is processing them within two months, according to USCIS.
Key Findings
Although it is entirely legal for you to ask a family member to work for your company, it is important to keep in mind that the DOL and USCIS will closely scrutinize employment-based sponsorships for family members. These organizations are aware that some petitioners might try to circumvent the eligibility criteria for certain green cards or employment-based visas in order to reduce processing times and bring their family members to the U.S. more quickly. Because of this, if you are interested in pursuing this path, it is imperative that you be prepared to fully comply with DOL and USCIS standards, provide a genuine job offer, make a good-faith effort in the recruitment process, and be honest about the fact that you are hiring a family member if you do so.
The main takeaway here is that the Department of Labor is seeking to ensure the legitimacy of this process. They want proof that your relative did not influence hiring decisions and that you did not specifically create a position for them. In addition, they will want to know whether your hired relative owns part or all of the company.
To alleviate the DOL’s concerns, you must not only demonstrate that the hired relative meets the requirements, but also that he or she met the requirements before applying for the job and did not gain experience through you. Other good indicators include having a degree and unrelated references.
The process of hiring family members to work at your business can seem daunting and overwhelming. That’s why Eagan’s lead business attorney, Hannah Whaley, is here to help. Attorney Whaley can help streamline the process by guiding you through each step and ensuring that you’re addressing all the questions the DOL and USCIS may have. In addition, she’ll keep you updated on your case and provide you with helpful information every step of the way.
References
Processing Times, U.S. Citizenship and Immigration Services, Processing Times (uscis.gov), (last accessed: May 2, 2024). Processing Times, U.S. Department of Labor, Processing Times | Flag.dol.gov, (last accessed: May 2, 2024). Family-Sponsored Employment-Based Green Cards, Justia, (Oct. 2023), Family-Sponsored Employment-Based Permanent Residence | Immigration Law Center | Justia, (last accessed: May 2, 2024).
Webinar: How to Sponsor a Family Member Through Your Business in the U.S., Eagan Immigration, (April 25, 2024), Webinar: How to Sponsor Family Members Through Your Business in the U.S. (youtube.com).