BALCA Reverses CO Decision – Employee Referral Program Sufficiently Documented

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Junior Trading Systems Developer.”

On the Application for Permanent Employment Certification accepted by the CO on September 14, 2007, the Employer listed the three additional recruitment steps taken to advertise the position. The steps included listing on a job search web site, advertising in a local newspaper as well as advertising with the employee referral program from July 10, 2007 to August 10, 2007. An audit was issued by the CO requesting documentation of the Employer’s employee referral program. Thereafter, certification was denied by the CO who cited the Employer failed to include dated copies for the advertising of its employee referral program. In a request for review to the CO, the Employer argued that the program is ongoing and every new hire is provided a copy of the memorandum. An email dated March 17, 2008 was also submitted to demonstrate the Employer regularly notified its employees of the program.

PERM regulation 20 C.F.R. § 656.12(e)(1)(ii)(G) controls and it provides as part of the three recruitment steps an Employer must fulfill as part of PERM regulations, one can be an employee referral program with incentives. The program can either be documented with “dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.”

In the instant case, BALCA found the Employer sufficiently provided evidence of its employee referral program as a method of recruiting workers. Documents were submitted specifying the incentives offered, evidence was provided supporting the program was in existence at the time of recruitment, and over 90% of the applicants were a result of the employee referral program.

Accordingly, the Board reversed the decision of the CO and granted labor certification.

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