|November 3, 2008|
Information for Aliens and Employers on Immigration Cases
Types of immigration cases that may be heard by an ALJ, BALCA or the ARB
The Secretary of Labor is responsible under the Immigration and Nationality Act for administering labor certification and attestation programs which are generally designed to ensure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
ETA, Division of Foreign Labor Certification Cases
The Secretary's determination whether to grant a labor certification has been delegated to the Division of Foreign Labor Certification (DFLC), of the Employment and Training Administration. DFLC has extensive information on the various programs it administers on its Web page at http://workforcesecurity.doleta.gov/foreign/. The programs DFLC administers include
Many of these programs permit the employer to appeal a DFLC determination adverse to its interests to an administrative law judge (ALJ) or to the Board of Alien Labor Certification Appeals (BALCA). The DFLC determination letter will provide notice of how and where to file the appeal. Appeals of denials of H-2B visa cases go to U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security, and not to the Department of Labors OALJ, BALCA or the Administrative Review Board (ARB). See 8 C.F.R. § 214.2(h).
The DFLC is where an employer needs to go for information about filing for labor certification and status of its application prior to any request for hearing or review by an adjudicatory agency. The OALJ or BALCA will have information about the status of an employer's case only after appeal or request for hearing has been docketed.
ESA, Wage and Hour Division Cases
Enforcement actions relating to immigration matters are the responsibility of the Wage and Hour Division of the Employment Standards Administration. Information about immigration-related compliance matters is found at www.dol.gov/esa/whd/immigration/index.htm
To file a complaint that an employer is not complying with the attestations made on a Labor Condition Application under the H-1B, H1B1 and E-3 programs, see www.dol.gov/esa/whd/forms/fts_wh4.htm
If a complaint is timely filed and the Wage and Hour Administrator determines that there is reasonable cause to believe that there is a violation, the Wage and Hour office will conduct an investigation and the Administrator will issue a determination regarding the complaint. Any "interested party," including the H-1B non-immigrant, may request a hearing before an administrative law judge on the Wage and Hour Administrator's determination. Generally speaking, the H-1B non-immigrant may participate in the hearing as either the prosecuting party, or as the Administrator's witness in a case that has been appealed by the employer. Appeals from a final OALJ decision may be made to the Department of Labor's Administrative Review Board.
If a party calls as a witness a person who has trouble speaking or understanding the English language, the presiding ALJ will generally permit the parties to supply a translator. The expense of the translator is generally borne by the party calling the witness. If a translator is going to be used at a hearing, the parties should discuss this with the presiding ALJ beforehand. See also 29 C.F.R. § 18.604 (interpreter may be required to be qualified as an expert and to be administered an oath or affirmation to make a true translation).
Documents submitted into evidence in a permanent labor certification proceeding either shall be in the English language or shall be accompanied by a written translation into the English language, certified by the translator as to the accuracy of the translation and his/her competency to translate. See 20 C.F.R. § 656.20(e).
Change of Address or Change of Status
If you are a party and are a foreign national, and you have a change of address, you should send the DOL adjudicatory agency a copy of the Form AR-11 you are required to complete by USCIS. For more information on reporting a change of address with USCIS, see https://egov.immigration.gov/crisgwi
If you are an alien named in a labor certification appeal pending before BALCA, and you obtain permanent status by another means, please have your attorney, representative or employer notify the Board so that the appeal can be dismissed. Doing so may assist other aliens who are still waiting for a labor certification.