USDOL/OALJ: BALCA Benchbook - Chapter 26 | U.S. Department of Labor

The Board routinely affirms or reverses the CO's denial of certification. It has never directed that a hearing be held, although it has granted oral argument in several matters.

Pursuant to its authority to remand matters to the CO for further consideration, factfinding and determination, the Board has remanded matters for a variety of reasons, including:

permitting the employer to make a technical amendment to the ETA form,: Where the CO denied an application on the ground that the employer failed to submit a signed statement deleting the language requirements, but employer in fact deleted such requirements as they never appeared in the published advertisement and job offer, the panel found that the labor market had been tested without any restrictive impact. The panel found that, at most, the employer needed to comply with the formal administrative requirements to perfect the record. Thus, the panel granted certification subject to the employer's submission of amendments to the application reflecting the elimination of the language requirement. Travel Systems, Ltd. , 88-INA-579 (Oct. 13, 1989).
clarification of whether the employer filed a new application or was in fact pursuing its appeal,: Voorhees College , 88-INA-201 (Aug. 8, 1988) (unclear whether the employer had refiled immediately after a denial of certification based on failure to offer the prevailing wage).
clarification of a confusing and ambiguous processing of the case,: Where much of the exchange between the employer and CO was confusing and ambiguous, and the employer sought to rely on detailed FAA regulations to reject U.S. pilots for the job of Chief Flight Instructor, the matter was remanded so that the employer could submit more specific reasons for the rejection of each applicant. Le Tourneau College , 89-INA-276 (June 1, 1990).; See also Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991) (haphazard manner in which issues were raised deprived the employer of an opportunity to know precisely what issues were being raised or of full opportunity to rebut).
and providing the employer or the CO with an opportunity to process a matter under a newly announced clarification of the law or procedural rule.: See infra Division I, C, 3.

2. Appropriateness of remand versus reversal

Where the CO's ground for denying certification is meritless and the record contains no other evidence to sustain the finding, the CO may be reversed and certification granted. See Altobeli's Fine Italian Cuisine , 90-INA-130 (Oct. 16, 1991). A remand is appropriate, however, where the CO based the denial of certification on an erroneous ground but the record contains other evidence that could support the finding. See Patisserie Suisse, Inc. , 90-INA-131 (Oct. 16, 1991).

3. Consideration of changed circumstances on remand

In Kenneth R. Goldman , 88-INA-288 (May 3, 1990) ( en banc ), the Board remanded to permit the employer to justify the hours of employment for a Child Tutor based the child's age and circumstances now, rather at the time of the application.

C. Discretion of agency to relax or modify procedural rules

1. Ends of justice

A court or an administrative agency has the discretion to relax or modify procedural rules adopted for the orderly transition of business before it when the ends of justice require it. American Farm Lines v. Black Ball Freight Service , 397 U.S. 532, 537-39 (1970).

In Madeleine S. Bloom , 88-INA-152 (Oct. 13, 1989) ( en banc ), the Board held that the requirement to file a rebuttal within thirty-five days was neither jurisdictional or unwaivable, and does not preclude the Board from considering a request for review in appropriate circumstances; the Board emphasized, however, that regulatory deadlines would only be tolled in those rare instances in which failure to do so would result in manifest injustice.

For detailed discussion of Bloom and its progeny, see Chapter 19, II, G, 3 (Rebuttal).

2. Disfavor of denials on technical grounds

Denials of labor certification on purely technical grounds are not favored. J. Michael & Patricia Solar , 88-INA-56 (Apr. 6, 1989) ( en banc ).

3. New rule or clarification of law

On occasion, the Board has declined to apply a newly announced clarification of the law without first giving the employer a chance on remand to present evidence under the new standard. For example:

In Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) ( en banc ), the Board clarified the law regarding "investor" cases and weight to be accorded statements by counsel. The matter was remanded to permit the employer to present its evidence in a more appropriate format (most of its original "evidence" was in the form of undocumented statements by counsel) because of clarification of the law and because both the CO and the Board had been inconsistent in the past concerning whether statements by counsel would be considered as evidence.
In Delitizer Corp. of Newton , 88-INA-482 (May 9, 1990) ( en banc ), the Board clarified the law regarding sufficient dissimilarity of positions to avoid the proscriptions of § 656.21(b)(6). The matter was remanded, with the consent of the Solicitor, to permit the employer an opportunity to document its case under the new standard. (In a subsequent appeal, a panel affirmed the CO's finding that the employer failed to document its case on remand. Delitizer Corp. of Newton , 91-INA-53 (July 2, 1991)).
But see Marion Graham , 88-INA-102 (Feb. 2, 1990) ( en banc ) (reissued to correct faulty service sheet on Mar. 14, 1990), in which the Board applied the newly announced test for documenta-tion of a "live-in" requirement and found the employer's documentation inadequate. Two dissenters indicated that they would have remanded to give the employer an opportunity to document its case under the new standard.

Similarly, the Board has found that it would be inequitable to apply a newly announced application of a procedural rule where insufficient notice of the new application had been provided to the parties.

In Tel-Ko Electronics, Inc. , 88-INA-416 (July 30, 1990) (reconsideration en banc), the Board held that it would be inequitable to apply the ten-day limit to a motion for reconsideration in a case where the original en banc decision was issued only one day after the ten-day limit was estab-lished in Lignomat, USA, Ltd. , 88-INA-276 (Jan. 24, 1990) (order denying motion for reconsideration). However, the Board announced its intention of enforcing the ten-day rule in future cases.

D. Limitation on Authority

In an en banc decision, the Board unanimously concluded that as a non-Article III court, it has no inherent authority to overrule the validity of a regulation. Moreover, BALCA, established by regulation to carry out the Department s objectives under § 212(a)(5) of the Immigration and Nationality Act, has no expressly delegated authority to rule on the validity of a regulation. Accordingly, even where the Board finds a regulatory provision in conflict with the governing statutory provision, it has no authority to overrule or disregard the regulation as written and intended by the Secretary of Labor. Dearborn Public Schools, 91-INA-222 (Dec. 7, 1993) ( en banc ).

II. Jurisdiction

A. Date of request for review

The Board does not have jurisdiction over proceedings in which the request for review was filed with the CO before May 8, 1987. See 52 Fed. Reg. 11217 (1987); Schlumberger Well Services , 87-INA-617 (July 27, 1989); Veri-Fone, Inc. , 87-INA-709 (Dec. 19, 1988). But see Cathy Carpet ills, Inc. , 87-INA-161 (Dec. 7, 1988) ( en banc ) (Board took jurisdiction over a pre-BALCA on remand from the court of appeals based on affirmations by both the employer and the government that the remand had been directed to the Board and the government's waiver of objection to the Board's jurisdiction).

B. Substitution cases

In 78 Employers , 92-INA-46, 88 to 104, 107 to 123, 125 to 139, 141 to 147, 149 to 159, 181 to 184, 188, 215, 216, 221, 222, 224, 236 (May 19, 1992) ( en banc ) (per curiam), the CO argued that the Board does not have jurisdiction over the CO's refusal to process cases involving the substitution of aliens on approved applications based on interim final regulations that took effect on November 22, 1991. See 20 C.F.R. § 656.30(c)(1) and (2) (1991). The Board held, however, that the refusal by a CO to process a request for the substitution of an alien is tantamount to a denial of alien labor certification, and that it has jurisdiction to review such a denial.

III. Record to be reviewed

A. Regulatory provisions

Section 656.26(b)(4) provides that the request for administrative-judicial review "shall contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based."

Section 656.27(c) provides that the Board "shall review the denial of labor certification on the basis of the record upon which the denial of labor certification was made, the request for review, and any Statements of Position or legal briefs submitted."

B. Evidence not in the record upon which denial was based

1. Evidence submitted with motion to reconsider

Although a CO may deny a motion for reconsideration of a FD because it is based on new evidence that should have been presented as part of the employer's rebuttal to the NOF,

See Chapter 21, VI (Reconsideration by CO).

if the CO considers evidence submitted with a motion for reconsideration, the Board may also consider that evidence on administrative-judicial review.

Construction and Investment Corp. , 88-INA-55 (Apr. 24, 1989) ( en banc ) (evidence considered in deciding a motion for reconsideration is part of the record upon which the denial was made).

Where the CO is unclear as to whether new evidence submitted with a motion to reconsider was considered in ruling on the motion, the Board may consider the evidence on appeal.

Where the CO stated that the "record had been reviewed" in the denial of a reconsideration motion, the panel in International Bridge Corp. , 90-INA-100, 102 (Sept. 5, 1991), concluded that it could consider the evidence on appeal.
B. Raeen Construction , 90-INA-352 (Mar. 27, 1991) (the CO stated that "We have reviewed the file" in denying a motion to reconsider; the panel considered the new evidence and found that the CO's denial of certification could nevertheless be affirmed).
See also Royal Antique Rugs, Inc. , 90-INA-529 (Oct. 30, 1991) and Lee Baron Fashions, Inc. , 89-INA-263 (Apr. 22, 1991) discussed in Chapter 21 (Reconsideration by CO). In those cases the CO had was recalcitrant or unreasonable in refusing to consider evidence that could not have been obtained during the rebuttal period.

2. Evidence submitted with the request for review

Evidence first submitted with the request for review will not be considered by the Board.

Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992); Kelper International Corp. , 90-INA-191 (May 20, 1991); Kogan & Moore Architects, Inc. , 90-INA-466 (May 10, 1991); White Harvest Mission , 90-INA-195 (Apr. 19, 1991); The Fifteenth Street Garage , 90-INA-52 (Nov. 21, 1990); Faten Zaky , 89-INA-353 (Aug. 24, 1990); Euclid Chemical Co. , 88-INA-398 (May 4, 1989); Amritsar Academy , 88-INA-34 (Mar. 13, 1989); University of Texas at San Antonio , 88-INA-71 (May 9, 1988); Physician's Inc. , 87-INA-716 (July 12, 1988).

If, however, an employer has not had an opportunity to present all relevant evidence because the CO abused his or her discretion, the matter may be remanded for further consideration.

Where the CO raised a new issue, and considered evidence it obtained to refute the employer's rebuttal, for the first time in the Final Determination, the matter was remanded, inter alia , for consideration of evidence submitted by the employer that cast doubt on the CO's factual findings. Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991).
Peter Hsieh , 88-INA-540 (Nov. 30, 1989) (improper to exclude evidence submitted after the FD where the NOF was ambiguous or lacking particularity).

3. Evidence submitted with the brief on appeal or a motion to remand

Evidence not in the record upon which the denial was based, but submitted with the employer's brief on appeal,

O'Malley Glass & Millwork Co. , 88-INA-49 (Mar. 13, 1989).
But see B. Raeem Construction and Investment Corp. , 90-INA-352 (Mar. 27, 1991) (panel considered evidence submitted with motion to reconsider which the CO may have considered and evidence submitted with the appellate brief in finding that the denial of certification would nevertheless be affirmed).

or a motion to remand,

Universal Energy Systems, Inc. , 88-INA-5 (Jan. 4, 1989).

cannot not be considered on appeal, however, if an employer has not had an opportunity to complete the record because the CO abused his or her discretion, the matter may be remanded for further proceedings.

In Polyclad Laminates, Inc. , 90-INA-94 (Mar. 26, 1991), wage survey evidence, which was first presented with the employer's brief on appeal, could not be considered; rather, the case was remanded to the CO for an abuse of discretion in denying the employer's request for an extension of time to complete and file the survey.
Prime Clinical Systems, Inc. , 88-INA-530 (Feb. 9, 1990) (issue of alien's lack of experience not raised until FD).

oreover, in one instance, a panel considered evidence first submitted with an appellate brief and granted certification where the CO did not give proper notice of an alleged defect.

In North Shore Health Plan , 90-INA-60 (Apr. 8, 1991) ( en banc review pending), the CO challenged in the NOF whether the alien possessed one of five qualifications. In the FD the CO found that the employer had failed to document all of the qualifications. The panel found that the CO's failure to give notice that the employer must rebut all five qualifications made the notice ambiguous. Rather than remanding the case, the panel considered evidence submitted with the brief and found that the alien was qualified for the position.

C. Constraining of issues based on employer's actions

1. Legal arguments not raised before the CO

Where an argument made after the FD is tantamount to an untimely attempt to rebut the NOF, the Board will not consider that argument.

Where the employer raised the argument that U.S. applicants were not qualified for the first time after the FD was issued, the Board could not consider the argument since the CO could not have considered the argument. Huron Aviation , 88-INA-431 (July 27, 1989).

oreover, the Board may not consider arguments presented after the FD which encompass material facts not in the record before the CO.

Modular Container Systems, Inc. , 89-INA-228 (July 16, 1991) ( en banc ); Yaron Development Co. , 89-INA-178 (Apr. 19, 1991) ( en banc ).
In Cynthia Bartky , 90-INA-440 (May 9, 1991), for example, the panel did not consider counsel's assertions, made after issuance of the FD, that a live-in worker was needed to "discourage crime" and for lack of available public transportation.
See Chapter 11, V, E (Evidence) in regard to statements by counsel as evidence.

One panel, however, has indicated that general legal argument may be considered on appeal.

The Interpublic Group of Companies, Inc. , 90-INA-23 (May 29, 1991) (counsel conceded that the employer did not address an issue in rebuttal but argued (unsuccess-fully) that certification could nevertheless be granted).
See also 20 C.F.R. § 656.26(b)(4), which provides that "[t]he request for review, statements, briefs, and other submissions ... shall contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based." Although the Board has not directly addressed the question, this language seems to limit the submission of evidence to the record made before the CO, but not the scope of the legal argument.

2. Issue withdrawn in request for review

The employer's withdrawal in its request for review of an argument it had made in rebuttal leaves the NOF allegation admitted. Agha Khan Gems Corp. , 88-INA-66 (Aug. 23, 1989).

3. Admission based on failure to address NOF finding

Section 656.25(e) provides that the employer's rebuttal evidence must rebut all of the findings in the NOF and that all findings not rebutted shall be deemed admitted. On this basis, the Board has repeatedly held that a C0's finding which is not addressed in the rebuttal is deemed admitted. See Chapter 19, I (Rebuttal).

D. Constraining of issues based on CO's actions

1. Issues not preserved or raised in the FD

The Board will not consider issues not preserved by the CO in the FD.

Where the CO challenged the business necessity for the position of a Child Tutor, and did not challenge the employer's live-in requirement as being unduly restrictive, the panel held it would not consider the live-in issue on appeal. Drs. Preisig & Alpern , 90-INA-35 (Oct. 17, 1990).
The Board, en banc , refused to decide an issue previously relied on by the panel, because the FD did not preserve the issue. Loew's Anatole Hotel , 89-INA-230 (Apr. 26, 1991) ( en banc ) (challenge to alien's experience with employer not preserved).

2. CO's failure to respond to rebuttal

Where the FD does not respond to the employer's argument or evidence on rebuttal, the matters are deemed to be successfully rebutted and are not in issue before the Board.

Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991); Barbara Harris , 88-INA-392 (Apr. 5, 1989).
Where the FD found the employer's rebuttal "insufficient to overcome the citations set forth [in the NOF]" but the only issue discussed in the FD was the overqualification of the alien, the other matters in the NOF were deemed successfully rebutted and not at issue. Hough International , 91-INA-24 (Mar. 18, 1991) (per curiam).
See also Chapter 12, II, E (Final Determination).

If, however, a CO denies an application based on untimely rebuttal, the Board would be reluctant to hold that the CO's failure to address untimely rebuttal evidence mandated a finding of successful rebuttal by the employer. Zumot , supra (dicta).

3. Issue first raised in the FD

The Board will not consider issues first raised in the FD, but will remand to permit the employer to address the citation.

Where the CO did not raise the issue of whether the alien met a particular job requirement until the FD, and thus the employer first filed evidence to establish that the alien met this requirement with the Board, the case was remanded for the CO to consider this evidence. Prime Clinical Systems, Inc. , 88-INA-530 (Feb. 9, 1990).
Where the CO raised a new issue, and considered evidence it obtained to refute the employer's rebuttal, for the first time in the Final Determination, the matter was remanded, inter alia , for consideration of evidence submitted by the employer that cast doubt on the CO's factual findings. Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991).
See also Chapter 12, II, C, 2 (Final Determination).

IV. Stare decisis

The Board of Alien Labor Certification Appeals is not bound by pre-Board decisions. The purpose of the Board is to provide stare decisis for the immigration bar. Artdesign, Inc. , 89-INA-99 (Dec. 5, 1989).

USDOL/OALJ: BALCA Benchbook - Chapter 26

UNITED STATES DEPARTMENT OF LABOR BOARD OF ALIEN LABOR CERTIFICATION APPEALS Judges' Benchbook Second Edition - May 1992

CHAPTER 26

SCOPE OF BOARD AUTHORITY, JURISDICTION AND REVIEW

UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992