Board of Alien Labor Certification Appeals
United States Department of Labor
Washington, D.C.
Date: Oct. 24, 1995
Case No.: 95-TLC-28
In the Matter of:
MUSTACHE CAFE,
Employer
on behalf of
IRAJ SOTUDE,
Alien
BEFORE: Huddleston, Vittone and Wood
Administrative Law Judges
John M. Vittone
Acting Chief Judge
ORDER OF DISMISSAL
On May 11, 1995, the Certifying Officer (CO) issued a Final
Determination denying the Employer's application for a temporary
labor certification under the H-2B program. 8 U.S.C.
§§ 1101(a)(15)(H)(ii)(b) and 1184; 20 C.F.R. Part 655,
Subpart A. The CO's Final Determination states that "[a] denial
of certification or a notice that certification cannot be made is
not reviewable by the Department of Labor, but may be appealed to
the [Immigration and Naturalization Service (INS)]." In a
submission postmarked August 3, 1995, the Employer submitted a
request to the Board of Alien Labor Certification Appeals[1]
(BALCA) seeking review of the CO's denial of temporary
certification pursuant to 8 C.F.R. § 214.2(h). The
Employer's submission presents the question of whether BALCA or
an individual Department of Labor (DOL) administrative law judge
(ALJ) has the authority to review a CO's denial of certification
for a temporary alien labor application involving an H-2B worker.
The Administrative Procedure Act indicates that an agency
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must provide a hearing presided over by an administrative law
judge appointed under 5 U.S.C. § 3105 only "when required by
statute to be determined on the record after opportunity for an
agency hearing." 5 U.S.C. § 554. See also 5 U.S.C.
§ 556. The Immigration and Nationality Act (INA) does not
prescribe that decisions of the Department of Labor pursuant to
the INA be made pursuant to 5 U.S.C. §§ 554 and 556.
Thus, there does not appear to be a statutory entitlement to an
ALJ hearing for a decision of a CO to deny a certification for an
H-2B applicant either under the APA or the INA.[2]
An agency may provide, by regulation, an opportunity for an
ALJ hearing even if the underlying statute does not require such
a hearing.[3] In temporary labor certification cases, DOL's
regulations do provide for ALJ or BALCA hearings in regard to
certain temporary alien employment applications such as H-2A
temporary agricultural workers (20 C.F.R. § 655.112),
logging and non-H-2A agricultural workers (20 C.F.R. §
655.212), and nonimmigrant registered nurses (20 C.F.R. §
655.320). The regulations, however, are silent in regard to any
agency review of a determination made by the Employment and
Training Administration on an application for certification
pursuant to the H-2B program. See 20 C.F.R. §
655.3(c).
The Employer argues that BALCA has authority to hear the
instant appeal pursuant to 20 C.F.R. § 656.26, which states
that "[i]f a labor certification is denied, a request for review
of the denial may be made to the Board of Alien Labor
Certification Appeals..." The Employer's argument is that the
words "labor certification" in this sentence are not modified by
any adjective or adjectives that "would limit, or imply a limit
on, BALCA's authority to review denial of any type of labor
certification . . . ." Employer's brief at 3. The definitions
section of 20 C.F.R. Part 656, however, states that "[l]abor
certification means the certification to the Secretary of
State and to the Attorney General of the determination by the
Secretary of Labor pursuant to section 212(a)(14) or the
Immigration and Nationality Act (8 U.S.C. 1182(a)(14)) . . ." 20
C.F.R. § 656.3. Section 1182(a)(14) of the INA involves
permanent alien labor certification. H-2B applications, in
contrast, are governed by 8 U.S.C. §§
1101(a)(15)(H)(ii)(b) and 1184. Given the definitional
limitation in section 656.3, it cannot be concluded that BALCA's
jurisdiction is expanded by 20 C.F.R. § 656.26 to cover all
labor certification determinations.
The fact that certain temporary alien labor certification
determinations are subject to review by BALCA does not implicitly
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anoint BALCA with the authority to review all such
determinations. Rather, where BALCA review is available in
temporary alien labor situations, the regulations explicitly
state that authority. See, e.g., 20 C.F.R. §§
655.112 and 655.320.
In sum, no statutory or regulatory authority exists to
provide BALCA or an individual DOL ALJ with the authority to
review a CO's denial of certification for a H-2B category
worker. The Employer's sole avenue of formal administrative
appeal is pursuant to the INS regulation found at 8 C.F.R. §
214.2(h)(6)(iv)(D), which provides that if a certification by the
Secretary of Labor cannot be made, a petition containing
countervailing evidence may be filed with the Director of the INS
as an attachment to the visa petition.[4] Accordingly
IT IS ORDERED that this matter is hereby DISMISSED.
At Washington, D.C. For the Panel:
_________________________
John M. Vittone
Acting Chief Judge
JMV/trs
[ENDNOTES]
[1] BALCA is an administrative-judicial review board consisting
of members appointed from the ranks of the Department of Labor's
administrative law judges. It is not part of the Immigration and
Naturalization Service or the Department of State.
[2] In Yong v. Regional Manpower Admr, U.S Dept. of
Labor, 509 F.2d 243 (9th Cir. 1975), the court observed that
where the underlying statute does not require a hearing on the
record, the APA does not require a formal, quasi-judicial
administrative hearing. In Yong, the court went on to
find that the statute read in conjunction with the DOL
immigration-related regulations at issue implied that the
applicant was entitled to challenge the record upon which the
initial denial was predicated. In that case, however, the
Department's regulations indicated that there was an opportunity
for further administrative review.
In Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L.
Ed. 616 (1950), the Supreme Court held that Constitutional due
process may require a hearing at the administrative level, even
if the underlying statute does not explicitly require a hearing.
If so, the APA's hearing requirements at 5 U.S.C. § 554
would be applicable. Even if this panel was to conclude that due
process requires a hearing concerning the denial of a
certification under the H-2B program, the Board has held in an en
banc decision that it lacks inherent or express authority to rule
on the validity of a regulation or to invalidate a regulation as
written. Dearborn Public Schools, 91-INA-222 (BALCA Dec.
7, 1993) (en banc), citing Gibas v. Saginaw Mining Co.,
748 F.2d 1112, 1117 (6th Cir. 1984).
[3] The CO takes the position that INS has the exclusive
authority to review a denial of an H-2B temporary alien labor
certification by DOL. CO's brief at 6-14. We doubt that DOL
would be precluded, because of its solely advisory role on H-2B
applications, from issuing a regulation that provides an appeal
process within DOL prior to a final decision on an H-2B
certification by this agency. Nonetheless, since we find that
neither the INA, the APA nor the DOL regulations provide BALCA or
an individual DOL ALJ with the authority to review such a
determination, and we need not decide this issue.
[4] See also Operations Instructions of the Immigration and
Naturalization Service 214.2(h)(5) (reproduced in 9
Immigration Law and Procedure (Matthew-Bender) Rel.61-5/93
at 567-569); Administrator for Regional Management, Employment
and Training Administration, U.S. Dept. of Labor, General
Administration Letter No. 1-95 at 8 (Nov. 10, 1994)
(reproduced at 60 Fed. Reg. 716 (Feb. 7, 1995).
