Monday, January 24, 2011

BALCA's "Matter of Sanmina-SCI Corporation": Clarifying the "Employee Referral Program" recruitment step under PERM

In Matter of Sanmina-SCI Corporation the Board of Alien Labor Certification Appeals (BALCA) found that in order to make the employee referral program recruitment step meaningful, an employer must minimally be able to document that:
  • Its employee referral program offers incentives to employees for referral of candidates;
  • That the employee referral program was in effect during the recruitment effort the employer is relying on to support its labor certification application; and 
  • That the Employer’s employees were on notice of the job opening at issue. 
In this case the employer, Sanmina-SCI Corporation, filed an Application for Permanent Employment Certification on behalf of a foreign national for the position of Software Applications Engineer.  Following an audit, the Certifying Officer denied certification on the grounds that:
  • The Employer's Notice of Filing was only posted for nine consecutive business days because one of the posting days was Columbus Day;
  • The Employer failed to provide adequate documentation of its employees referral program with incentives. 
BALCA vacated the denial based on the Notice of Filing ground and remanded the case to permit the Employer an opportunity to present evidence as to whether Columbus Day for the Employer was a "business day" consistent with Il Cortile Restaurant, 2010-PER-683 (Oct. 12, 2010).  In Il Cortile Restaurant BALCA held that, for purposes of the Notice of Filing requirement, a "business day" is any day that the employees are working on the premises and can see the Notice of Filing. 

BALCA in this case also reversed the CO's finding that the Employer had not adequately documented its use of an employee referral program with incentives. In its reasoning BALCA held that the Employer's documentation was adequate to fulfill the required elements in that the Employer established that it had an employee referral program with incentives, that the program was ongoing during the recruitment for the position at issue, and that the job was advertised within the company. 

BALCA is the administrative appellate body within the U.S. Department of Labor (DOL) consisting of administrative law judges assigned to labor certification matters. As way of background, a permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). More specifically, the DOL's Office of Foreign Labor Certification  (within the ETA) must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To review previous decisions, visit BALCA's Digest of PERM Decisions.  DOL's Office of Foreign Labor Certification (OFLC) also has a lot of information about the permanent labor certification process under their Program for Electronic Review Management or PERM. This includes: Policies and Regulations, Frequently Asked Questions (FAQs), Forms and Instructions, along with other useful information.