It is possible to obtain a green card through the sponsorship of a company owned or managed by a close relative. However, it is well known that these cases frequently get audited by the Department of Labor, and some are denied if the family relationship could obstruct an honest recruiting effort.
The Board of Alien Labor Certification Appeals (BALCA) recently handed down two decisions that seem at odds with each other. In one case, the sibling relationship between the company owner and the sponsored immigrant resulted in a denial. In another case, the parent-child relationship between the company owner and the sponsored immigrant resulted in an approval. The difference between the two decisions was not found in the type of relationship, but in the position the sponsored immigrant played in the company.
In the case that was denied, the company was a small company that employed 13 people. The immigrant was currently working for the company in a position that oversaw the human resources department, which was responsible for conducting the required recruitment procedures. The brother, owner and sole shareholder of the company, actually conducted the applicant interviews for the company. These factors were enough to tip the scales against the company – the proximity of the sponsored immigrant to the hiring process was simply too much to overcome.
At the other end of the spectrum, BALCA approved a case where the sponsored immigrant, despite having a management position that could fill in for the general manager if absent, was able to overcome the presumption that he could negatively influence the recruiting procedures due to his relationship to the company’s owner – his mother. In this case, BALCA understood that although the job duty to take over a superior’s responsibilities for a brief period of time (illness, holiday) was listed, in the practical world, a substitute general manager would not be hiring and firing individuals and otherwise obstructing or influencing hiring practices, even in a company of 9 employees.
These cases have very, very slight differences that can be hard to reconcile. But for citizens and residents looking to sponsor family members through their company, the answer may lie in the management level. High–ranking managers in small companies can easily reach down and interfere with a hiring process, but it is much more difficult for low-ranking managers to accomplish the same by reaching up. In any case, if you are sponsoring a family member through your own company, the best practice would be to make sure the position is shielded off from the human resources department.
