BALCA Vacates CO’s Denial and Provides Standards for Employee Referral Programs

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Software Applications Engineer.”

The CO accepted the employer’s application for Permanent Employment Certification on behalf of the alien. The CO denied certification after issuing an audit citing the Employer’s Notice of Posting was only posted for nine consecutive business days because one of the days the NOF was posted was Columbus Day. Additionally, the certification was denied on the grounds that the Employer did not provide sufficient evidence of the employee referral program with incentives.

PERM regulation 20 C.F.R. § 656.10(d)(1)(ii) controls and it provides a “business day” is “any day that employees are working on the premises and can see the Notice of Filing.

In the instant case, the Employer had no opportunity to establish Columbus Day was a legitimate business day for the Employer. Additionally, BALCA found that the documentation for the employee referral program was sufficient, specifically; the Board found that (1) the employer had established the employee referral program with incentives prior to recruitment, (2)the program was ongoing during recruitment and (3) the job opening was advertised within the company to put employees on notice.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded to the CO, to provide the Employer with the opportunity to prove Columbus Day was a business day for the Employer.