Legal Considerations for Family-Based Business Immigration Visas

Can You Use Your Family Business to Help Loved Ones Get Immigration Visas?

From family-based immigration to naturalization processes, immigration in the United States is complex and time-consuming. It can take years for someone to acquire a visa via certain processes, and it’s not uncommon for individuals to look for ways to expedite these processes.

One way that family members may seek to help their loved ones with immigration is by offering them a job with their company. But work-based visas are as complex as any other immigration process, and it’s not as simple as making room for your cousin or some other family member on the payroll.

What Are the Requirements for Family-Based Immigration?

Before digging into the complexities of business-based immigration for family members, it’s helpful to understand family immigration requirements.

U.S. citizens can file petitions on behalf of their spouse, child, parent, or sibling. U.S. Lawful Permanent Residents can file petitions on behalf of a spouse or an unmarried child. Some categories of visas associated with family-based immigration are limited each year, which means only a select number are approved. Individuals who are not approved are put on a waiting list, and in some cases, it can take as long as 10 years to get approved.

Can You Bring in Family Members to Work for Your Business?

The limitations on family-based immigration and the long timelines that many might face—along with uncertainty about whether visas will ever be approved—push families to look at other options. For example, what if your cousin wants to come into the country on a visa? Family-based immigration doesn’t offer an option for sponsoring a cousin.

A U.S. citizen or lawful resident who owns a business might think that they can offer their cousin—or an even more distant relative—a job and sponsor them for a work visa. However, it’s not that easy, and there are many requirements for these types of visas.

Good Faith Recruitment Requirements

First, businesses in the country cannot simply choose to fill a spot with an immigrant without ensuring that they can’t fill the spot with a qualified person who is already legally in the country. To that end, businesses must demonstrate that they made a good-faith effort to recruit from within the country.

That can involve listing the job via public means, such as online job boards, and seriously considering applicants and resumes. Employers must be able to demonstrate that no applicant met the requirements for the position before they attempt to bring in someone on a work-related visa.

When you complete the application for this type of visa, you are required to indicate whether the person involved has any sort of familial tie to the business. Omitting this fact when such a relationship exists is grounds for a denial. However, a familial relationship can put an even bigger burden on the good-faith recruiting requirement, as there may be more investigation into whether you could have hired someone else.

Unique Qualification Requirements

Your family member also has to be uniquely qualified for the job. You can’t simply create a secretarial job and bring in a family member from overseas to fill it on a work visa, for example. It’s simply not believable that you couldn’t fill this type of position with a person already in the country. Typically, work visas are reserved for individuals who have specific types of skills.

A True Need to Hire

Finally, there must be a true need to fill a position. This means that your business functions and goals must rely on the position. You can’t simply create a position that fits all of the above requirements and add it to your payroll.

Get Legal Help With Family Immigration Cases

Even with all of the above in mind, it is not impossible to hire a family member via a work-visa process. You must be aware of all the challenges you might face and go into the process with a plan to meet those challenges and remain on the right side of immigration law.

A good way to do that is by working with an immigration attorney who is familiar with family immigration processes. Your legal team can help you understand whether your business has—or could have—a position that meets the requirements and whether your family member is uniquely qualified for the position.

In addition to helping you understand the intricacies of immigration law, your attorney can help you complete required forms and follow immigration processes. This can reduce headaches and denials based on improperly completed forms or missed deadlines. In some cases, your attorney might recommend that you leverage third-party services to help demonstrate that you’re complying with the law. For example, if you have a third-party recruiter handle the hiring process and they agree that your family member is the best qualified candidate, that lends credibility to your decision.

Visa processes can take a long time, so you should begin application processes sooner rather than later. If you are considering trying to help a family member get a visa based on employment with your business, talk to an immigration lawyer today. Call the Element Law Firm, PC, at 760-642-6111 to find out how we can help.