Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 21

Supplement current through January 1997

RECONSIDERATION BY CO

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TABLE OF CONTENTS

I. Authority of CO to reconsider

II. Duration of CO's authority to reconsider; timeliness of motion

III. Authority of CO to rule on whether motion was timely

IV. Requirement that CO rule on motion

V. Additional argument

VI. Additional evidence

VII. Offer to acquiesce if clarification not accepted

I. Authority of CO to reconsider

After The CO denied certification based on the Unlawful rejection of a U.S. applicant, the Employer filed a "Reply to the Final Determination." The "reply" provided additional justifications for the rejection of the applicant. Citing Harry Tancredi , 88-INA-441 (Dec. 1988) (holding that CO's had the inherent authority to reconsider their own decisions), the Board remanded the case. The Board reasoned that the Reply complied with an order in the NOF which required to state with specificity the lawful, job related reasons for the rejection. Moreover, the Board noted that it may have been difficult to understand the CO's directions in the NOF. Given the above, the Board treated the "reply" as a timely motion for reconsideration that introduced new evidence. Palo Alto Elec. Motor Corp. , 95-INA-249 (Feb. 3, 1997).

II. Duration of CO's authority to reconsider; timeliness of motion

A motion for reconsideration may properly be denied where "it is based on new evidence that should have been presented (as) a part of the employer's rebuttal to the NOF." E. Davis, Inc., 92-INA-277 (Aug. 4, 1993); Reliable Mortgage Consultants , 92-INA-321 (Aug. 4, 1993). Seealso ST Sys., Inc. , 92-INA-279 (Sept. 2, 1993); Joanne Carma , 90-INA-462 (Oct. 13, 1993).

A CO has the authority to entertain a motion for reconsideration which is filed before the FD becomes final (on or before 35 days after issuance of the FD). Harry Tancredi , 88-INA-441 (Dec. 1, 1988)(en banc). See also David Urbach , 92-INA-278 (Dec. 7, 1992)(per curiam). But see Marcia Beiley , 91-INA-108 (May 13, 1992) (motion to reconsider is timely when filed 34 days after issuance of the FD).

The CO's authority to reconsider was reaffirmed by the full Board in the combined case of Sequel Concepts, Inc./EGS, Inc. , 92-INA-421 and 93-INA-472 (Oct. 29, 1993). The Board reiterated that the filing of a motion for reconsideration tolls the 35 day time period in which to file a request for BALCA review. Moreover, the Board held that it lacks jurisdiction where the CO merely forwards an employer's motion for reconsideration unless there is a specific request for Board review.

Dismissing a case, the Board cited Harry Tancredi , 88-INA-441 (Dec. 1, 1988) (en banc), and noted that "where the 35 day period for requesting review has expired without the filing of a request for review with the CO, the Final Determination becomes the final decision of the Secretary." The CO denied the Employer's application for labor certification on December 27, 1994. The Employer filed a motion for reconsideration on February 2, 1995. The CO denied the Motion on the grounds that it was not filed within 35 days. Affirming, the Board wrote that Employer had 35 calender days and had not established excusable neglect. Du Nouveau Salon , 95-INA-314 (June 30, 1995) (per curiam).

III. Authority of CO to rule on whether motion was timely

no new cases

IV. Requirement that CO rule on motion

A. Statement of whether motion is granted or denied

The Board, in Richard Clarke Associates , 90-INA-80 (May 13, 1992)(en banc), concluded that "the CO is required to stated clearly whether he has denied an employer's request for reconsideration . . . or has granted the request and, upon reconsideration, affirmed the denial of certification."

A case was remanded where the CO failed to address Employer's motion for reconsideration which was submitted with additional arguments and documentation. M.I.E. Corp. , 93-INA-32 (Mar. 2, 1993). See also K & S Plumbing , 92-INA-404 (June 23, 1993) (per curiam).

A case was remanded, at Employer's request, where the CO failed to rule on a motion for reconsideration. Indarjit Jadoo , 93-INA-154 (May 26, 1993).

CO must rule on motion for reconsideration. See Harry Tancredi , 88-INA-141 (Dec. 1, 1988) (en banc). CO failed to rule on motion for reconsideration which normally results in remand. However, given the time appeal file was on BALCA docket, and given the small likelihood that CO would reverse his or her decision, the Board decided to hear the case on the merits. Chemtex Int'l, Inc ., 94-INA-308, (May 31, 1995).

After the CO denied certification based on the Unlawful rejection of a U.S. applicant, the Employer filed a "Reply to the Final Determination." The "reply" provided additional justifications for the rejection of the applicant. Citing Charles Serouya & Son, Inc. , 88-INA-261 (Mar. 13, 1989) (requiring COs to rule on whether they grant or deny motions for reconsideration), the Board remanded the case. The Board reasoned that the Reply complied with an order in the NOF which required to state with specificity the lawful, job related reasons for the rejection. Moreover, the Board noted that it may have been difficult to understand the CO's directions in the NOF. Given the above, the Board treated the "reply" as a timely motion for reconsideration that introduced new evidence. Palo Alto Elec. Motor Corp. , 95-INA-249 (Feb. 3, 1997).

Where Employer submitted a request for a Motion to Reconsider after the CO denied its application for alien labor certification and where the CO failed to rule on the Employer's otion to Reconsider then, even though the case was remanded on difference grounds, it would nonetheless still have been remanded due to the CO's failure to rule on the Motion to Reconsider because failure to rule on such a motion results in a remand. See Charles Serouya & Sons, Inc. , 88-INA-261 (Mar. 14, 1989)(en banc). Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996)(dictum).

B. Summary denial of motion

The CO does not need to state his or her reasons for denial of a motion for reconsideration and, indeed, where "an Employer requests reconsideration on the same record that was before the agency when it rendered its decision, as opposed to a motion for reconsideration based on grounds outside the original record (including legal arguments), the denial of such a motion is not itself reviewable." Thus, the Board limited its prior holding in Linen Star , 90-INA-438 (Dec. 7, 1990) (en banc), wherein the CO was required to state the reasons for his denial on reconsideration, to the circumstances of that case. Richard Clarke Associates , 90-INA-80 (May 13, 1992)(en banc).

Although a CO must rule on a motion for reconsideration, he or she may summarily deny it. See Harrry Tancredi , 88-INA-141 (Dec. 1, 1988) (en banc). Chemtex Int'l, Inc ., 94-INA-308, (May 31, 1995).

C. Ambiguity concerning whether motion was filed

no new cases

V. Additional argument

A. No prior opportunity to argue position

See Bearings Ltd. , 94-INA-302 (May 31, 1995) (remanding a case after the CO denied certification on the basis that Employer had not provided requested arguments and rebuttal material concerning the Employer's posting of a job notice where Employer argued that the notice material was hand delivered with the its rebuttal at the time it was filed but where in the motion for reconsideration, the CO failed to rule on timeliness of the submission of the notice material).

VI. Additional evidence

A. Scope of CO's discretion

CO properly declined to consider evidence not submitted with the rebuttal and therefore the evidence was not reviewable by the Board. Databyte Technology, Inc. , 93-INA-263 (Jun. 28, 1994). See also Tevere 84 Restaurant , 93- INA-269 (Aug. 17, 1994); Judy Roberts Productions , 94-INA- 113 (Nov. 10, 1994)(CO properly refused to reconsider based on newly submitted evidence that could have been submitted with rebuttal); Dogan Constr. Co. , 94-INA-40 (Dec. 30, 1994).

The CO did not err in denying the Employer's motion for reconsideration and in refusing to consider new evidence because Employer should have included the evidence as part of its rebuttal. See Royal Antique Rugs, Inc. , 90-INA-529 (Oct. 30, 1991). The Employer argued because "extensive additional information and documentation has become available to Employer," that the CO should reconsider the Employer's motion. The evidence consisted of a conversation between the state job service and a pathologist about the position of a research associate. The Board declined to remand to the Co with instructions to rule on the motion for reconsideration because Employer failed to state why the evidence was not presented sooner. Mount Sinai Medical Ctr. , 94-INA-109 (June 27, 1995). See also Bearings Ltd. , 94-INA-302 (May 31, 1995) (remanding a case after the CO denied certification on the basis that the Employer had not provided requested arguments and rebuttal material concerning the Employer's posting of a job notice where Employer argued that the notice material was hand delivered with the its rebuttal at the time it was filed but where in the motion for reconsideration, the CO failed to rule on timeliness of the submission of the notice material); Re/Max Reality Group , 95-INA-15 (July 19, 1996) (declining to consider affidavits from several of the Employer's employees discussing a phone conversation with an applicant because evidence not submitted with the rebuttal cannot be considered by the Board).

It is an abuse of the CO's discretion to not accept evidence with a request for reconsideration when the employer has not been given adequate prior opportunity to present such evidence. Copper Range Co. , 94-INA-316(June 27, 1995).

B. Newly obtained evidence

An employer's motion for reconsideration was properly denied where Employer acknowledged that its rebuttal was inadequate and new evidence submitted with the post-FD motion was an "entirely new application for labor certification." Reliable Mortgage Consultants , 92-INA-321 (Aug. 4, 1993).

Evidence submitted in Employer's motion for reconsideration, that rejected U.S. applicant was in fact neither a U.S. citizen or a permanent resident, was not newly obtained evidence since that fact was indicated in applicant's employment authorization which was part of the record upon which the final determination was made. Accordingly, it must be considered upon review. Because the only ground for denying certification was the unlawful rejection of that U.S. applicant, the CO's determination was reversed and certification was granted. Metcalf & Eddy of Michigan, Inc. , 92-INA-237 (Oct. 26, 1993).

1. Evidence not previously available

no new cases

2. No prior opportunity to present evidence

When employer submits evidence of mailing in a motion for reconsideration following a denial based on failure to file rebuttal, fairness dictates that the CO examine that evidence presented and, if sufficient, reconsider the decision. Upon review of the evidence presented, however, the panel affirmed the CO's finding of untimely rebuttal. Andrea Foods , 94-INA- 309 (Sep. 21, 1994).

3. Scope of Board's authority to consider evidence not considered by CO

no new cases

VII. Offer to acquiesce if clarification not accepted

no new cases