Service Based Match Rate Fails BRF Test

Plan has increasing rates of match based upon years of service.  Top rate has insufficient # of NHCEs so fails.

Top rate is 50% up to 12% deferral.  Second rate is 50% up to 10% deferral.

No one in the second rate deferred more than 10% so moving them up to the top rate and applying the formula would have no effect on the contribution.  So, can I:

1. Just give them 1% of pay anyway and be ok, or

2. Do I have to elevate lower years of service people with 12% or more deferral?

ER would like #1 since they are longer service employees but would it be a valid correction of the match problem?

Thank you

I don't understand option one.

Who is getting 1%? Why 1%? 

Increase from 50% of 10% deferral (match rate tier 2) to 50% of 12% deferral (match rate tier 1)

So it would be 50% of 2% of pay more, or 1% of pay.

Does that clarify?

The Employee in rate #2 only deferred 10% of pay.  Can I give him 1% of pay and say he is in the top match tier even though the match formula for the top tier would not give him more $.

Thanks for responding