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).
SeealsoDr. 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.
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. SeeAltobeli'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.
SeePatisserie Suisse, Inc., 90-INA-131 (Oct. 16,
1991).
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.
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).
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)).
ButseeMarion 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.
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).
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). ButseeCathy Carpet
Mills, 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).
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.
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."
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).
SeealsoRoyal 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.
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,
interalia, 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).
ButseeB. 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).
Moreover, 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.
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).
Moreover, 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).
Seealso 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.
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).
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).
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).
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).
Seealso 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).
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,
interalia, 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).
Seealso Chapter 12, II, C, 2 (Final
Determination).
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).
