On October 18, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Bottomline Technologies. This case discusses the information that must be documented if an employer uses an employee referral program as part of its additional recruitment steps in labor certification. In this case, the employer submitted a labor certification application. An audit was issued by the Department of Labor. In responding, the employer noted that an employee referral program had been used as a recruitment step and submitted a one page document that discussed an incentive program for employees that referred candidates who were later hired. The Certifying Officer (“CO”) denied the application because it determined that the employer failed to provide dated copies of notices advertising the program and the documentation did not identify the employer and job location. The employer submitted a substantial amount of supporting documentation as part of its motion for reconsideration. BALCA found that this additional information could be considered because the CO had examined it when reviewing the motion for reconsideration. BALCA analyzed Matter of Sanmina-Sci Corp which set out a three part test to determine if an employee referral program was documented appropriately. The employer must prove that “(1) its employee referral program offers incentives to employees for referral of candidates, (2) . . . the program was in effect during the recruitment effort . . ., and (3) the employer’s employees were on notice of the job opening.” BALCA found that the employer’s signed attestation as to the dates of the program in the ETA 9089, the signed recruitment report which listed the dates of the program, and the alien’s signed acknowledgement that it had received the company handbook, including information on the referral program was sufficient to meet the first prong. BALCA also stated that the employer’s name and the job location were listed in the job advertisement posted on the company website. It noted that if “the CO was looking for this information to be on the employee handbook description of the employee referral program . . . this is not a reasonable or realistic expectation.” Consequently, BALCA reversed the decision of the CO. This decision provides welcome guidance on the type of information that must be documented to effectively use an employee referral program.
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