Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 24 - SUPPLEMENT

Supplement current through January 1997

REQUEST FOR ADMINISTRATIVE-JUDICIAL REVIEW

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TABLE OF CONTENTS

I. Standing to request review

II. Timeliness of the request

III. Specification of grounds for review

I. Standing to request review

A. The employer

no new cases

B. The alien

1. Request for Board review

Title 20 C.F.R. § 656.26 (a)(2) allows appeals only where the employer also requests review. Thus, where Employer's only official who joined in the appeal with Alien, revoked her participation, the Board dismissed the case. Indometal Corp. , 94-INA-516 (Oct. 30, 1995).

2. Request for review by federal district court

no new cases

II. Timeliness of the request

A request review which is mailed or hand-delivered to the CO more than 35 days from the date of issuance of the FD is untimely and will result in a dismissal of the employer's appeal. Ana F. Pla, M.D. , 92-INA-415 (Mar. 18, 1994); Israel Hotel Representatives, Inc. , 92-INA-310 (Aug. 11, 1993); Donald Rynne , 91-INA-111 (Nov. 30, 1992); Adam Irivarry , 92-INA-6 (Nov. 30, 1992)(per curiam); Dolly Fabrics, Inc. , 92-INA-34 (Nov. 27, 1992)(per curiam); Scuffy's Collision & Towing Serv. , 92-INA-50 (June 24, 1992) (per curiam); Rosemary Richardson , 92-INA-47 (June 23, 1992) (per curiam); Kennedy Painting & Contracting, Inc ., 91-INA-299 (June 23, 1992) (per curiam) (employer's argument that "three days for regular mail service" should be added to the time period was rejected); Continental Plastics & Chemicals, Inc ., 90-INA-65 (June 8, 1992) (per curiam).

Employer failed to establish "excusable neglect" for its failure to file a timely request for review where the panel noted that the attorney and employer agreed to an alternative course of action and Employer "later felt disappointed" and wanted to appeal the CO's denial. Blake Business Sch. , 90-INA-219 (Oct. 22, 1992).

Excusable neglect was not established where the employer's counsel merely asserted that "'the request for review was timely prepared but that through inadvertence on the part of the clerical staff, the request was not timely mailed until the 36th day following the Final Determination." Fred's Liquor , 91-INA-240 (Feb. 18, 1993).

A employer's failure to file a timely request for review resulted in a dismissal where counsel asserted that he did not receive a copy of the FD, but a copy of the FD was received by the employer. The panel noted, however, that both the NOF and FD were mailed to Employer in care of Employer's counsel and that "Employer, whether represented by counsel or not, has the burden of filing a timely request for administrative review." H.C. Contractor, Inc. , 92-INA-295 (Feb. 16, 1993).

A. Requirement that request be made within thirty-five days

no new cases

B. Calculation of period

The Carl Group , 95-INA-79 (May 24, 1995) (finding a request for review untimely where time period for requesting review started on March 9 and ended on April 12 but where the request for review was hand-delivered on April 13).

Dismissing a case, the Board cited Delmar Family Dental Ctr. , 88-INA-132 (Sept. 26, 1988) (en banc) and noted that Employers have 35 calendar days in which to file a request for review after the date the FD is issued. 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 otion on the grounds that it was not filed within 35 days. Affirming, the Board wrote that the Employer had not established excusable neglect. Du Nouveau Salon , 95-INA-314 (June 30, 1995) (per curiam).

C. Effect of untimely request - denial

no new cases

D. Lack of timeliness excused

1. Excusable neglect standard

Dismissing a case, the Board cited Computer Network Serv. , 93-INA-47 (May 13, 1994), Fred's Liquor , 91-INA-240 (Feb. 18, 1993), Blake's Business Sch. , 90-INA-219 (Oct. 22, 19992), Charleedane Indus. , 88-INA-69 (Apr. 9, 1990), and Soccer Exports, Ltd. , 89-INA-226 (Mar. 28, 1990), and acknowledged that "the deadline for filing requests for review is not jurisdictional, and may be waived upon a showing of `excusable neglect.'" The Employer missed the deadline for filing requests for review. The Employer's counsel stated that "she agreed on short notice" to teach as an adjunct a law school class, "which cluttered matters for her and forced her to rely on a new staff person who was unfamiliar with the labor certification process." The Board reasoned that counsel agreed to teach the class 3 weeks before the request for review deadline. "When it became apparent that Counsel could not be able to meet the deadline, there is nothing in the record to indicate why she could not have requested an extension of time in which to file a request for review." Du Nouveau Salon , 95-INA-314 (June 30, 1995) (per curiam).

2. Retained jurisdiction of Board when matter is remanded

Evidence of an applicant's failure to respond is sufficient to show that he or she in unavailable. See Metrodata Serv. , 88-INA-32 (Mar. 13, 1989). The Employer noted in a recruitment report that an applicant had not shown up after he said that his mother-in-law died. However, the applicant in a questionnaire stated that he called Employer on the date of the interview and was informed that the position was no longer open. The Board affirmed the denial of certification because failure to show up because of a mother-in-law's death may not be a valid reason for rejection and because the applicant deserved more credibility than Employer. Bellport Country Club , 94-INA-575 (June 6, 1996).

E. Tolling of period where a timely motion for reconsideration is filed

The 35 day time limit within which to request review runs from the date of filing the first motion for reconsideration. The time limit begins running after the CO rules on that motion; the time period is not again tolled following any subsequent motions for reconsideration, "otherwise, an employer would be permitted to file a series of motions to reconsider, effectively tolling the period indefinitely." Alvarado Pain & Rehabilitation Ctr. , 94-INA-450 (Jul. 21, 1994).

F. Authority of CO to rule on timeliness of request

no new cases

III. Specification of grounds for review

A. Requirement that the particular grounds for review be stated

Where Employer addressed none of the CO's reasons for denial of labor certification, did not assign error to CO's FD or otherwise dispute the CO's findings, but where, instead, the Employer requested to be allowed to "cure the previous deficiencies" by repeating the recruitment procedures, and where Employer stated that health problems during the recruitment made it difficult to carry on an effective recruitment, then labor certification was properly denied. Citing North Am. Printing, Ink., Co. , 88-INA-42 (Mar. 13, 1988)(en banc)(dismissing an appeal where Employer failed to file a brief and failed either to state its grounds for appeal or allege error by the CO) the Board reasoned that, although it is "unfortunate" that the Employer's health may have interfered with his ability to conduct an effective recruitment, requests for review must be in writing, must clearly identify the particular labor certification determination from which review is sought, and must set forth the particular grounds for the request. B&B Richmond Constr. Corp. , 95-INA-442 (January 28, 1997)

B. Effect of failure to specify grounds - dismissal

In the combined cases Sequel Concepts, Inc. , 92-INA-421, and EGS, Inc. , 93-INA-472, the full Board held that employer's motion for reconsideration by the CO will not be automatically considered a request for Board review. Where the CO denies a motion for reconsideration and summarily forwards the case to the Board as an appeal, the Board does not have jurisdiction over the case unless a specific request for BALCA review has been made by Employer. Because it would be unfair to summarily dismiss these type of cases already docketed with BALCA, the Board noted that in such instances it will continue to issue an Order to Show Cause whether employer intends an appeal to lie with the Board. Sequel Concepts, Inc./EGS, Inc. , 92-INA-421, 93-INA-472 (Oct. 29, 1993)(en banc).

In response to the Final Determination denying labor certification, the Employer's counsel submitted a letter asserting that the CO's determination was "incorrect, arbitrary, capricious, an abuse of discretion, and inconsistent," but without providing legal reasoning, argument, or documentation. The Board found that this submission failed to comply with the regulatory requirements for requesting review because, under § 656.26(b)(1), a request for review must be in writing and must clearly identify the particular grounds for the request. Mere vague statements or references to the regulations are not tantamount to setting forth the particular grounds for review. See North Am. Printing Ink., Inc., 88-INA-42 (Mar. 31, 1988)(en banc). B & H Enter., Inc. , 95-INA-431(Jan. 27, 1997)

1. General statements

In an en banc decision, the Board reaffirmed its Order of Dismissal where Employer's request for review merely stated that "the grounds, arguments and considerations advanced in the August 18 Rebuttal are hereby incorporated by reference. The Board concluded that a general incorporation by reference of a document issued prior to the Final Determination is not sufficient to set forth specific grounds for review pursuant to §656.26 (b)(1). Miriam R. Witlin , 94-INA-23 (Nov. 28, 1994) & Richard P. iller , 94-INA-52 (Nov. 28, 1994).

A statement that the CO "acted in an arbitrary and capricious manner" does not support a request for review and will result in a dismissal. Prism, Inc. , 92-INA-40 (July 13, 1992). See also Robert Richter Productions , 93-INA-61 (Aug. 25, 1993; Henry Pryor , 93-INA-81 (Aug. 2, 1993); David Black , 92-INA-261 (Mar. 12, 1993); Mark Bondio Plastering, Inc. , 92-INA-260 (Dec. 17, 1992); Roberto Gotelli, Inc. , 92-INA-27 (Dec. 16, 1992) (mere assertion that Employer is distressed that the CO would not permit it to reinterview a prospective employee is not sufficient); M & V Saenz , 92-INA-266 (Dec. 7, 1992)(per curiam); Norwal , 92-INA-268 (Nov. 30, 1992) (mere assertion of "abuse of discretion by CO" is insufficient).

Employer's assertion that the CO's denial, based upon unduly restrictive job requirements, should be reversed based upon Employer's "increasing age alone" did not support a request for review. Mark's Golden Jade Restaurant , 91-INA-364 (July 13, 1992).

Employer's statement that CO's denial was an "abusive discretionary decision based on confidentiality of information" was tantamount to failure to set forth specific grounds for review. Sam Kute , 93-INA-128 (Feb. 7, 1994), Tony Toscano , 93-INA-125 (Feb. 7, 1994).

After the CO issued a Final Determination denying labor certification, Employer's counsel submitted a letter asserting that the CO's determination was "incorrect, arbitrary, capricious, an abuse of discretion, and inconsistent," but provided no legal reasoning, argument, or documentation. The CO's denial of labor certification was affirmed by the Board because the request for review failed to comply with the regulatory requirements for requesting review. General statements of disagreement with the CO do not constitute an assignment of error. B & H Enter., Inc. , 95-INA-431(Jan. 27, 1997)

2. Undue harshness exception

no new cases

C. Withdrawal of argument in request for review

no new cases