Matter of Deloitte Services – employee referral program’s incentives and dates required

BALCA found that 20 CFR §656.17(e)(1)(ii)(G) requires documentation of the employee referral program’s incentives as well as the dates the program was advertised, despite the use of the words “can” and “or” in the regulation.

Issue Date: 02 March 2011
BALCA Case No.: 2010-PER-00348
ETA Case No.: A-07260-75939

Employer on behalf of RADEEPKUMAR RATILAL SINGAPURI, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Jonathan C. Adams, Esquire
Fragomen, Del Rey, Bernsen & Loewy LLP
Philadelphia, Pennsylvania
For the Employer

Gary M. Buff, Associate Solicitor
Jonathan R. Hammer, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, D.C.
For the Certifying Officer

Before: Romero, Price, and Rosenow
Administrative Law Judges


This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (C.F.R.).


On September 28, 2007, the Certifying Officer (CO) accepted for processing Employer’s Application for Permanent Employment Certification (ETA Form 9089) for the position of “Senior SAP Basis Technology Analyst.” (AF 191-206).1 Within its application, Employer attested that one of the three additional recruitment steps it took to promote this professional position was advertising with its employee referral program from June 25 to July 10, 2007. (AF 195). On November 15, 2007, Employer was notified that its ETA Form 9089 was selected for audit. (AF 187-190). The Audit Notification directed Employer to submit, among other records, “[r]ecruitment documentation as outlined in 656.17(e).” (AF 188). Employer responded on December 13, 2007, and attached a screenshot of its internal job-posting website, “Staffing WebTop,” showing the dates the posting opened and expired. (AF 134-186).

On May 22, 2009, the CO denied certification of Employer’s application for three reasons, the second of which was that Employer failed to provide adequate documentation of its additional recruitment steps, in violation of 20 C.F.R. § 656.17(e)(1)(ii)(G). (AF 131-133). The CO found that Employer failed to provide dated copies of employer notices or memoranda advertising the program and specifying the incentives offered, as required by Section 656.17(e)(1)(ii)(G). On June 18, 2009, Employer requested reconsideration and argued that its submission of the screenshot was sufficient to fulfill the regulation’s requirement of dated copies of employer notices. (AF 3-130). Additionally, Employer provided website printouts describing its talent referral program, “Refer Potential Movers and Shakers.” (AF 27-43).

The CO determined that Employer’s request did not overcome all deficiencies noted in the determination letter thus forwarded the case to BALCA on February 12, 2010. On March 11, 2010, BALCA issued a Notice of Docketing. Employer filed a Statement of Intent to Proceed on March 25, 2010, and attached the brief it previously submitted with its request for reconsideration. On April 26, 2010, the CO filed a Statement of Position asserting that Employer’s failure to submit timely the appropriate documentation, as required by 20 C.F.R. § 656.17(e)(1)(ii)(G), was a fatal defect under 20 C.F.R. § 656.24(g)(2).


An employer who files an Application for Permanent Employment Certification under the basic labor certification process must attest to having placed a SWA job order and two print advertisements in newspaper or professional journals prior to filing the application. 20 C.F.R. § 656.17(e)(1)(i). Employers filing an application for professional occupations must conduct three additional recruitment steps. 20 C.F.R. § 656.17(e)(1)(ii). One of the additional recruitment steps an employer can utilize is an employee referral program with incentives. This recruitment step “can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.” 20 C.F.R. § 656.17(e)(1)(ii)(G). A substantial failure by the employer to provide required documentation will result in that application being denied. 20 C.F.R. § 656.20(b).

An employer is permitted to request reconsideration of a denied certification, but such request may include only:

(i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or
(ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of § 656.10(f).

20 C.F.R. §§ 656.24(g)(2)(i), (ii). This regulation provides that the CO will consider additional documentation submitted with an employer’s request for reconsideration only if the employer did not have the opportunity to submit it previously and if it was maintained to support the application for labor certification. See Denzil Gunnels d/b/a/ Gunnels Arabians, 2010-PER-628 (Nov. 16, 2010).

The record clearly demonstrates that Employer failed to meet the regulatory requirements of Section 656.17(e)(1)(ii)(G). Employer indicated in its application that one of the three additional recruitment steps it took to advertise the position of Senior SAP Basis Technology Analyst was to use its employee referral program with incentives. Within its audit response, however, Employer failed to include “dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.” See 20 C.F.R. § 656.17(e)(1)(ii)(G) (emphasis added). Employer submitted only a screenshot of its internal job-posting website showing the dates the posting opened and closed. Employer did not submit any documentation advertising the program or its specific incentives; yet, Employer had the opportunity to present such documentation to the CO previously and should have done so in response to the Audit Notification. The additional documentation Employer submitted with its request for reconsideration is evidence not previously submitted, within the meaning of Section 656.24(g)(2), and therefore cannot be used in support of a motion for reconsideration (or review). See Shogun at Bey Lea, 2006-PER-00059 (Oct. 10, 2006). As such, we find that Employer’s failure mandates denial of the certification.

Still, Employer maintains that it satisfied the documentation requirement because the regulations state that documentation of the employee referral program “can” (as opposed to “shall”) be provided by dated copies of employer notices “or” memoranda
advertising the program and specifying the incentives offered. Given the “or” contained in the regulatory language, Employer argues that it reasonably believed it had adequately demonstrated its reliance upon its employee referral program as one of the three additional professional recruitment steps. Nevertheless, the regulation certainly notifies employers that the specifics of the program’s incentives as well as the dates the program was advertised are elements of adequate documentation. Ove Arup & Partners Consulting Engineers, PC, 2010-PER-00013 (July 20, 2010).

Based on the foregoing, we affirm the CO’s denial of labor certification.


IT IS ORDERED that the denial of labor certification in this matter is hereby AFFIRMED.

For the Panel:

Larry W. Price
Administrative Law Judge

NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of
its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk
Office of Administrative Law Judges
Board of Alien Labor Certification Appeals
800 K Street, NW Suite 400
Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

1 In this decision, AF is an abbreviation for Appeal File.

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17
Used the services of this office for Green Card through AOS and was mainly in contact with John Dorer. I was unsure about their services at first, considering the unusually affordable cost but was pleasantly surprised by their prompt responses to all our questions and their timely preparing and handling of our documents! Will be using their services again when filing for removal of condition! Definitely recommended!
Lisa Lorentzon
Lisa Lorentzon
22:56 10 Dec 17
my wife and i worked with John Dorer from Marc Taylors Associates. He's services were awesome and amazing. i would recommend him to anybody applying for their permanent resident to work with them.
Seun Olanrewaju
Seun Olanrewaju
15:33 22 Dec 17
I was very pleased with their professional service from the beginning to the end for my citizenship application. I am a professional working in the higher education and somewhat familiar with the immigration process. For that reason, I was thinking of applying it by myself but I found Taylor and Associates whose service fee is very affordable and worth of my time. Indeed, they found some of minor mistakes in my application, which could have delayed much longer for my application process. Luckily, they caught and fixed them immediately. Their communication was excellent. In fact, everything was very smooth. Even after I had the approval notice, they followed up with valuable advices. I strongly recommend their service if you need immigration services. Thank you Marc and John for your excellent services.
Dominic Choo
Dominic Choo
17:12 23 Dec 17

Read More Client Reviews