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BALCA Issues Decision Discussing the Use of Employee Referral Programs

Rating: 13 votes, 5.00 average.

On April 15, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in
Matter of Celmac Technology Services LLC. In this case, BALCA relied on the American Immigration Lawyer’s Association’s (“AILA”) notes from an April 11, 2013 meeting with the Office of Foreign Labor Certification (“OFLC”) National Stakeholders’ Quarterly Meeting to find that an employee referral program was appropriately used as an additional recruitment step in a labor certification case. In this case, the Certifying Officer (“CO”) issued a denial based on the fact that it found that the employee referral program that the employer used was invalid. It reached this decision because the employer had a small number of employees and relied heavily on foreign workers in its information technology business. Consequently, the CO found that the employee referral program was “not a recruitment method most likely to bring response from available U.S. workers.” The case was appealed and the DOL did not submit an argument in response to BALCA’s Notice of Docketing. In considering the case, BALCA reviewed statements made by the OFLC in its meeting with AILA. At this meeting, AILA questioned the “validity of PERM denials based on the use of an [employee referral program] where the employer was deemed too small (anywhere from 5 to 50 employees).” In response, the OFLC stated that “those denials were issued in error, and have been reversed.” Since the DOL confirmed to AILA that these denials were erroneous and the DOL did not make any argument in support of CO’s position, BALCA overturned the decision. This case provides support for the idea that smaller employers can use an employee referral program as an acceptable additional recruitment step in a labor certification case. However, the Hammond Law Group suggests that employers only use these programs as an additional fourth recruitment step due to their inconsistent treatment by the DOL. This post originally appeared on HLG’s Views blog by Cadence Moore, http://www.hammondlawgroup.com/blog/.

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