August 25, 2010
Generally in response to a Department of Labor PERM Labor Certification audit, the employer must provide specific documents that show that the proper recruitment steps were followed. If certain supporting documentation is missing, the Certifying Officer (CO) may deny certification, unless the attorney can show that the recruitment steps were actually followed and not including the supporting documentation was an inadvertence. An example of this kind of review is a PERM Labor Certification filed by Clearstream Banking (Clearstream).
Clearstream filed an Application for Permanent Employment on behalf of a foreign national who was selected for an account manager position. In the application, it stated that the job was advertised with the company’s employee referral program from July 26 to September 30, 2006. Having a referral program which pays an incentive for employees to refer potential candidates to the employer is one of the permitted recruitment steps in a PERM Labor Certification. However, the availability of the program must be posted and made known to the employees. On December 14, 2006 the CO issued an audit requesting additional recruitment documentation.
Clearstream sent the documents on January 10, 2007. On January 30, 2007 the CO denied certification because Clearstream failed to provide documentation about the use of the employee referral program during recruitment. On February 22, 2007 Clearstream requested that the CO review the denial. The attorney for Clearstream openly acknowledged that the specific document highlighting the referral program had been unintentionally left out of the documentation that was sent in response to the audit. However, the attorney emphasized that the omission of the one document should not reflect negatively on the validity of Clearstream’s recruitment practices. The recruitment process had been completed and recorded according to strict regulation standards.
Although the document explaining the employee referral program was not supplied to CO, there were other documents that supported the validity of the program. The recruitment report states that the employees were made aware of the program as well as the incentives associated with the position. The report was also signed by the Senior Manager and notarized. The attorney explained that the recruitment report should account for the documentation needed to assess the recruitment program. The CO issued a letter of reconsideration on October 2, 2008. The CO concluded that Clearstream had failed to provide the necessary documentation that was requested in the audit. The CO explained that there was not sufficient documentation including employee notices or information about the available incentives. As a result, the certification was denied.
Clearstream filed at Statement of Intent to Proceed on October 28, 2008 followed by an appellate brief on November 26, 2008. They explained that although one document was omitted, the incentives and recruitment process were clearly documented. Clearstream emphasized that the one mistake did not mean that their PERM recruiting efforts were insufficient. The CO filed a brief that explained the certification denial. CO stated that the denial was appropriate because the documentation provided was insufficient. However, CO did not address whether or not the provided documentation adequately described the employee referral program.
BALCA explained that the employee referral program must be documented by providing dates of posting notices as well as the discloser of offered incentives. It was acknowledge that Clearstream had all of the required documentation, but one specific document was accidentally omitted during submission. Clearstream’s response to the audit provided a detailed and substantial amount of documentation. BALCA emphasized that the CO’s letter detailing the certification denial was not clear. They concluded that Clearstream’s documentation thoroughly explained the employee referral as well as the incentives. BALCA determined that Clearstream’s recruitment process met regulation standards. As a result, the CO’s decision was reversed and the certification was approved.
There are strict regulations in place that must be followed in order to grant PERM Labor Certification. However, the ultimate goal of the regulations is to assess the thoroughness of the recruitment process. BALCA correctly made the decision that human error in submitting the documentation should not nullify otherwise valid and approvable PERM Labor Certification application.