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| September 21, 2008 DOL Home > OALJ Home > Immigration > BALCA En Banc Summaries |  |
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BALCA En Banc Decision Summaries DUE PROCESS
Adequacy of NOF and Final Determination
Due process: NOF must state the specific bases on which the decision to issue the NOF of Findings was made. DR. & MRS. FREDRIC WITKIN, 1987-INA-532 (Feb. 28, 1989) (en banc)
Due process: failure of CO in both NOF and Final Determination to state the reasons for his findings: remand. EXXON CHEMICAL COMPANY, 1987-INA-615 (July 18, 1988) (en banc)
Due process: unclear and confusing nature of the NOF results in remand. NANCY JOHNSTONE, 1987-INA-541 (May 31, 1989) (en banc)
Due process: Board rejected employer's argument that NOF was deficient in that it did not provide the option for the employer to re-recruit stating its full job requirements: " Nothing in the regulations or in our previous decisions requires a Certifying Officer to allow an employer to re-recruit under more restrictive requirements after the employer has recruited and received applications from qualified U.S. workers, and we specifically reject any such duty here." UNIVERSAL ENERGY SYSTEMS, INC., 1988-INA-5 (Jan. 4, 1989) (en banc)
Due process: "It is the C.O.'s obligation, under the regulations, to state the specific bases upon which the decision to issue the Notice of Findings was made. 20 C.F.R. §656.25(c)(2). If the reasons for the denial are not made clear to the Employer, it cannot rebut with specificity nor can it attempt to cure any deficiency, both of which are crucial to the Employer, as all findings in the Notice of Findings that are not rebutted are deemed admitted under section 656.25(e)(3)." THE STANDARD OIL COMPANY, 1988-INA-77 (Sept. 14, 1988) (en banc)
Due process: certification granted where the NOF failed to provide a clear statement of the deficiencies found by the CO in its advertising and recruitment and the Final Determination ignored the rebuttal argument. SIZZLER RESTAURANTS INTERNATIONAL, 1988-INA-123 (Jan. 9, 1989) (en banc)
Due process: NOF must specify errors: Because employers must be afforded a fair and reasonable opportunity to rebut it is incumbent on Certifying Officers "to identify which sections or subsections of the regulations allegedly have been violated and state with specificity how the Employer violated that section or subsection." In re Flemah, Inc., 88-INA-62 (February 21, 1989) (en banc). Specific statements of alleged violations in the NOF enable and encourage employers to file clear responses in rebuttal. The interests of administrative due process are, however, ill served where, as here, a Certifying Officer issues an NOF which is, at best, unclear and confusing then follows with a Final Determination which simply ignores Employer's rebuttal or seeks to add new reasons for denial." BARBARA HARRIS, 1988-INA-392 (Apr. 5, 1989) (en banc)
Due process: where the NOF is confusing and prevents an employer from knowing what he is rebutting, the denial of labor certification cannot be affirmed. Remanded. BEN THOMAS DESIGN, 1988-INA-411 (Mar. 31, 1989) (en banc)
Due process: "[A] CO's grounds for denial of a labor certification must be set forth in an NOF, giving the Employer an opportunity to rebut or to cure the alleged defects. See, e.g., In re Downey Orthopedic Medical Group, 87-INA-674 (Mar. 14, 1988) (en banc). [In addition] a CO may not cite new evidence in a Final Determination, because the Employer must be afforded the opportunity to rebut the evidence being relied on to deny certification. See, e.g., In re Shaw's Crab House, 87-INA-714 (Sept. 30, 1988) (en banc)." MARATHON HOSIERY CO., INC., 1988-INA-420 (May 4, 1989) (en banc)
Due process: NOF must put employer on notice of reason for proposal to deny certification, but is not required to be a detailed guide on how to achieve labor certification: " Twenty C.F.R. § 656.25 requires that the CO issue a Notice of Findings if certification is not granted. The Notice of Findings must give notice which is adequate to provide the employer an opportunity to rebut or cure the alleged defects. . . . Although the NOF must put the employer on notice of why the CO is proposing to deny certification, it is not intended to be a decision and order that makes extensive legal findings and discusses all evidence submitted to the file. The CO is not required to provide a detailed guide to the employer on how to achieve labor certification. The burden is placed on the employer by the statute and regulations to produce enough evidence to support its application. Case law has established that to provide adequate notice, the CO need only identify the section or subsection allegedly violated and the nature of the violation,... inform the employer of the evidence supporting the challenge, ... and provide instructions for rebutting and curing the violation,.... * * * Once the CO provides specific guides, he/she must be careful not to mislead the employer into believing that the specific evidence requested is all that is needed to rebut the NOF and for the application for labor certification to be granted. Often it is necessary for the CO to request specific information that he/she has a particular interest in obtaining in light of the deficiencies of the application. However, when the CO requires more than the specific information requested to find that the deficiency has been remedied, he/she must clearly state this fact in the Notice of Findings to avoid any ambiguity. MIAOFU CAO, 1994-INA-53 (Mar. 14, 1996) (en banc)
Issue or evidence raised for the first time in the Final Determination
Due process: "Denial of Alien Labor Certification based on an issued raised for the first time in the Final Determination is improper." DR. & MRS. FREDRIC WITKIN, 1987-INA-532 (Feb. 28, 1989) (en banc)
Due process: denial of an application on the basis of information not disclosed to the employer prior to the Final Determination foreclosed the employer's opportunity to rebut the previously undisclosed information: denial reversed and certification granted. PHOTOTAKE, 1987-INA-667 (July 20, 1988) (en banc)
Due process: remand where Final Determination was based on ground not raised in the original NOF or a supplemental NOF. TARMAC ROADSTONE (USA), INC., 1987-INA-701 (Jan. 4, 1989) (en banc)
Due process: where CO made phone calls to investigate employer's rebuttal evidence regarding the alien's qualifications for the job, but first disclosed this evidence in a Final Determination, the case was remanded to provide the employer an opportunity to respond to the new evidence. SHAW'S CRAB HOUSE, 1987-INA-714 (Sept. 30, 1988) (en banc)
Due process: where the employer fully and precisely followed the CO's directions for rebuttal, the CO erred in denying the certification on new grounds. MR. & MRS. CHARLES SHINN, 1988-INA-16 (Feb. 16, 1989) (en banc)
Due process: the CO may not rely on a ground first raised in the Final Determination to deny labor certification. BEL AIR COUNTRY CLUB, 1988-INA-223 (Dec. 23, 1988) (en banc)
Due process: certification may not be denied based on an issue first raised in the Final Determination BARBARA HARRIS, 1988-INA-392 (Apr. 5, 1989) (en banc)
Due process: "[A] CO's grounds for denial of a labor certification must be set forth in an NOF, giving the Employer an opportunity to rebut or to cure the alleged defects. See, e.g., In re Downey Orthopedic Medical Group, 87-INA-674 (Mar. 14, 1988) (en banc). [In addition] a CO may not cite new evidence in a Final Determination, because the Employer must be afforded the opportunity to rebut the evidence being relied on to deny certification. See, e.g., In re Shaw's Crab House, 87-INA-714 (Sept. 30, 1988) (en banc)." MARATHON HOSIERY CO., INC., 1988-INA-420 (May 4, 1989) (en banc)
Due process: issue not raised the NOF: "Section 656.25 specifies the path which a C.O. must follow to issue a Final Determination denying labor certification. The proposed bases for denial must first be presented in the Notice of Findings, thereby giving an employer the opportunity to cure or rebut the alleged defects. Denying labor certification in the Final Determination on grounds not first raised in the warning Notice of Findings violates section 656.25 and denies due process." When a CO wishes to rely on a new or substantially clarified basis for denial subsequent to the NOF, the CO should issue a second NOF. NORTH SHORE HEALTH PLAN, 1990-INA-60 (June 30, 1992) (en banc)
Issue raised in original NOF but not preserved in subsequent NOF
Due process: where the CO raised the issue of an unduly restrictive job requirement in the original NOF but did not raise it in a supplemental NOF where an actual minimum requirements issue was raised instead, the Board declined to affirm a Final Determination relying on a finding of an unduly restrictive job requirement. DUVAL-BIBB COMPANY, 1988-INA-280 (Apr. 19, 1989) (en banc) Final Determination: errors by the CO in the Final Determination do not relieve failures of proof in the rebuttal where the NOF gave adequate notice of the issue
Due process: misstatements by the CO in the Final Determination cannot have affected the Employer's rebuttal submission. [Editor's note: the decision implies that an error in analysis by the CO in a Final Determination will not relieve an inadequate rebuttal on the issue raised in the NOF]. BELHA CORPORATION, 1988-INA-24 (May 5, 1989) (en banc)
Due process: where the NOF gave the employer adequate notice of the issue to be rebutted, alleged error in the Final Determination did not excuse Employer's failure of proof in rebuttal. FISCHER IMAGING CORP., 1988-INA-43 (May 23, 1989) (en banc)
Due process: sufficiency of Final Determination: if the NOF provided the employer with adequate notice of the violation and instructions for curing or rebutting the deficiencies, a less than fully reasoned Final Determination may not prevent the Board from affirming a denial of labor certification if the employer's documentation was so lacking in persuasiveness that labor certification necessarily would be precluded. CARLOS UY III, 1997-INA-304 (Mar. 3, 1999) (en banc)
Rebuttal: "Under the regulatory scheme of 20 C.F.R. Part 24, rebuttal following the NOF is the employer's last chance to make its case. Thus, it is the employer's burden at that point to perfect a record that is sufficient to establish that a certification should be issued." CARLOS UY III, 1997-INA-304 (Mar. 3, 1999) (en banc)
Due process: where the NOF gave the employer fair notice of the issue, errors in the Final Determination are not a violation of due process. S & G DONUT CORP. and SIT DONUT CORP., d/b/a DUNKIN DONUTS, 1988-INA-90 and 91 (May 17, 1990) (en banc)
Due process: adequate notice of issues: where, despite the use of a confusing boiler-plate NOF, there could have been no reasonable doubt in the mind of Employer as to the nature of the CO's complaint, the Board rejected Employer's complaint that the Final Determination amounted to an acceptance of the rebuttal. CUSTOM CARD d/b/a CUSTOM PLASTIC CARD COMPANY, 1988-INA-212 (Mar. 16, 1989) (en banc)
Due process: where the CO clearly raised an issue in the NOF and the employer understood the issue to be presented as evidenced by its rebuttal, the fact that the CO did not explicitly cite the relevant section of the regulations did not prevent Board review of that issue. NATIONAL INSTITUTE FOR PETROLEUM AND ENERGY RESEARCH, 1988-INA-535 (Mar. 17, 1989) (en banc)
But see
Due process: case remanded where the CO made factual errors in the Final Determination as to whether employer had established business necessity for a publication requirement. Board reminded COs that "It is not enough merely to list all of the sections of the regulations which may be applicable to the CO's decision. Rather, it is incumbent upon the CO to identify which sections or subsections of the regulations allegedly have been violated and state with specificity how the Employer violated that section or subsection. FLEMAH INC., 1988-INA-62 (Feb. 21, 1989) (en banc) BALCA may remand for consideration of issues not previously adjudicated
Due process: the Board may direct the CO on remand to consider an issue not previously considered in the original NOF or the Final Determination. DAISY SCHIMOLER, 1997-INA-218 (Mar. 3, 1999) (en banc)
Due process: failure to address all of employer's rebuttal: in rebuttal to an "alien gained the qualifying experience with the employer" issue, employer argued both that the alien had the qualifying experience and alternatively that it is not now feasible to train workers. The CO failed to address the feasibility to train rebuttal. The Board affirmed the CO on the alien's experience finding, but remanded for consideration of the feasibility issue. Four dissenting Board members would have decided the feasibility issue rather than remanding the case because of the damage further delay would do to the employer. MELILLO MAINTENANCE, INC., 1989-INA-127 (Sept. 20, 1990) (en banc) CO is an impartial adjudicator, not an adversary of the employer
Due process: "The Certifying Officer appears to have acted as though he was Employer's adversary rather than an impartial adjudicator of the certification application. This Board will not stand idly by in such cases." Reversal and grant of certification where CO made numerous factual errors in assessing the application. LA SALSA, INC., 1987-INA-580 (Aug. 29, 1988) (en banc)
Due process: impossibility of completing rebuttal during 45 day period: where employer was instructed to show its contact of colleges and universities for recruitment, which the employer did during the rebuttal period, but the CO denied certification because employer's submission did not show the results of the contact, the Board remanded the case because the contacts would not have been responded to during the rebuttal period. AL-GHAZALI SCHOOL, 1988-INA-347 (May 31, 1989) (en banc)
Due process: undisclosed evidence: the Board will not affirm the CO's denial of certification based on granting more credibility to the statement of a US applicant than employer's statements where the statement was supplied to the employer and not in the record before the Board: however, where there was evidence casting doubt on employer's statements, the case could be remanded. ANDER TRADING, INC., 1988-INA-356 (Dec. 22, 1988) (en banc)
Due process: disclosure of outside communications in NOF: If a CO uses evidence obtained from sources other than the applicant, it is necessary for the CO to disclose this information in the NOF so that the employer may have an opportunity to rebut that evidence. CHAMS, INC, d/b/a DUNKIN' DONUTS, 1997-INA-40, 232 and 541 (Feb. 15, 2000) (en banc)
DUE PROCESS: the panel erred when it decided the case on a ground, although within the scope of the relevant regulation, not cited by the CO: the CO had challenged the actual minimum requirements on the suspicion that employer had other hotels with similar positions in which applicants were accepted with qualifications lower than now required, whereas the panel had decided the case on the ground that the alien had gained the qualifying experience for the job with the sponsoring employer – a ground never raised while the case was before the CO. LOEWS ANATOLE HOTEL, 1989-INA-230 (Apr. 26, 1991) (en banc)
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