Employee Referrals Program in PERM Recruitment
The PERM recruitment process requires the use of Real World Employee Referral Programs (ERPs). These ERP’s can be conducted in several ways such as an intranet or internet posting, static notice in an employee handbook, regularly circulated emails or handouts, etc. USCIS has just released important news regarding ERPs. According to the Department of Labor (DOL),
“ PERM regulations at 20 CFR §656.17(e)(1)(ii)(G) provide that the use of an ERP as an additional form of recruitment can be documented by providing dated copies of employer notices or memoranda that advertise the program and specify the incentives offered.”
However left unspecified, is whether the date on the ERP record needs to be within the 180 recruitment period. Also left unspecified is whether the documentation must demonstrate the “nexus” between the position and the ERP.
Regardless, DOL does require that ERP requirements should exercise documentation of a nexus. You might be wondering – what does this mean for employers? Simply put, employers should preferably document their ERP’s explicitly and clearly. If ERP’s have not been re-modified to fit these criteria, utilizing BALCA instructions would be useful – below, you will find summaries of these major and important decisions.
A 2009 decision stated in dicta that ERP’s are allowed to be a “passive form” of recruitment thus, not requiring active promotion of a job opportunity to be documented in order to reinforce the nexus between position and program. This decision demonstrates and instance where BALCA disagrees with the DOL Certifying Office on applicable standards of ERPs.
In 2010, an employer audit response in the form of an intranet printout with a date which predated the recruitment period did not provide whether the position being offered was eligible under its ERP, nor did it highlight specific incentives. BALCA concurred with the DOL CO’s denial of the case.
A 2010 case creates BACLA’s three prong test called the “Sanmina-Sci test” that requires documentation of ERPs by the employers. The three components of the test are:
a) That it offer incentives
b) That it active during the recruitment period
c) That employees were included on the notice of the job opportunity
DOL interpreted this test to mean that on audit, documentation bearing a date(s) within recruitment period must be included.
BALCA has however interpreted decisions more flexibly, permitting examination of the context and circumstances acting upon the ERP. For example, BALCA overturned a denial which was rendered due to “undated ERP” (described above) because in reality, 45 resumes were received as a result of the ERP in question during the recruitment period.
In 2010, DOL denied a certification on the grounds that ERP was not documented by the employer nor was it available to employees. In the audit response, an undated ERP and undated letter from the employer’s director was included. The letter elaborated upon the ERP and confirmed its existence. It also referred to the posted date and the dated Notice of Filing.
BALCA decided that the ERP and director’s letter was enough to satisfy the first prong in the Sanmina-Sci test (mentioned in previous case description) and furthermore, the NOF combined with website ads met the criteria for the third prong. The second prong was deemed satisfied due to a statement on the NOF which stated that the position was eligible for an employee referral bonus meaning, it proved the ERP was in effect during the recruitment period (which was then supported further by the undated director’s letter).
This case however, is a clear example of disagreement between DOL and BALCA. According to DOL’s FAQ issued 8/3/2010, reference to an ERP in the NOF is not sufficient for this purpose.
In 2010, DOL denied a certification specifically in reference to the failure to establish a “logical nexus” between ERP and recruiting efforts. In response to this denial, the employer included one undated page elaborating upon the ERP and incentives it included from the employee manual.
Upon request for consideration, General Counsel for the employer issued a letter declaring that the ERP was undated because it was in fact a “permanent program”
In this situation BALCA’s interpretation of the issues were in alignment with the CO’s denial stating that only a letter, with no supporting evidence, was inadequate in carrying the employer’s burden. BALCA highlighted that the employer did not reference the ERP in the NOF nor on its intranet. Finally, no resumes were received on account of the ERP.
A certification was denied by DOL in 2010 specifically for “failure to provide dated copies of employer notices or memoranda advertising the program and specifying the incentives sought”. This denial was overturned by BALCA upon further review.
The employer did provide an email from the president of the company which had been issued to its employees in regards to the position being offered (which was within the recruitment period). However, a memorandum was included which provided dates outside the recruitment period.
BALCA deemed DOL’s reason for denial to be unclear stating that there were dual interpretations to the denial. On one hand the denial could refer to the employer failing to provide documentation for the ERP. While on the other hand, it could mean the documentation was simply not dated or that the documentation didn’t verify dates specified on ETA 9089 (which were within recruitment period).
The Sanima-Sci test was performed for this case in which BALCA determined that the email satisfied prongs two and three and that the memorandum was sufficient in satisfying the first prong.
A more recent issue arose in 2011 in which a denial was received because the ERP documentation was undated and it failed to reference the name of the employer/job location.
In the Motion for Reconsideration, confirmation of the existence of the ERP in the company handbook and a copy of the employee’s acknowledgement of receipt of the book (each of which predated the recruitment period), were provided by the employer.
The CO re-affirmed that the reason for denial were supported however, also resolved that the first prong of the Sanmina-Sci test had been satisfied by the employer because the ERP did in fact offer incentives.
BALCA found upon its examination of the case that the first, second and third prong of the Sanmina-Sci test were also satisfied.
The first prong was satisfied by the employer’s signed attestation on Form 9089, the recruitment report which stated program was in fact in effect from the beginning of the recruitment period.
The second prong was fulfilled be the documentation indicating the ERP was indeed included as part of the company handbook at the time when the beneficiary signed the acknowledgement of receipt of handbook. The third prong was satisfied through web advertisements and the NOF (notice to employees).
This decision is important in that BALCA found that it was “not a reasonable or realistic expectation” for an ERP to include the location of the job opportunity or the company name.
In 2011, BALCA decided that a sole intranet announcement which referred to the ERP was not sufficient in demonstrating that the offered position was in fact eligible under the terms of the ERP. BALCA furthered this train of thought by also stating that generic statements stating a program was “incentive-based” was also insufficient for documenting that the ERP offered incentives. This is an important declaration because if finds that the previous documentation of ERP incentives was deficient.
It is important to keep in mind that interpretation of the DOL and BALCA regarding “sufficient documentation” of an ERP is constantly progressing and evolving through denials, audits and requests for review.
So, What Should I Do?
The best advice for now is to remain compliant with DOL standard and only using BALCA interpretations as a “back-up”. This means providing dated documentation which shows the position being offered was in fact eligible under the terms of ERP.
Also, it is recommended that references to the ERP be made in other recruitment forms (such as in the NOF or as announcements on the employer’s intranet and website) in order to establish that current employees were notified.
I hope this article has been useful to you. I wish you the best of luck in your future endeavors and please send me any questions you might have!
Beeraj Patel, Esq.
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