The alien can request administrative-judicial review before
the Board of Alien Labor Certification Appeals, but only if the
employer also requests review. 20 C.F.R. § 656.26(a)(2).
Failure by the employer to join the request for review will
result in dismissal of the appeal. Super KQ-1540 A.M.,
88-INA-397 (May 31, 1989) (en banc); Hub Truck
Rental, 91-INA-262 (Oct. 18, 1991); United California
Citrus, Inc., 90-INA-30 (Jan. 4, 1990) (order of dismissal).
An alien has independent standing to seek judicial review of
a denial of labor certification in federal district court.
Mastroyanis v. United States Dep't of Labor, No. A88-089
Civil (D.C. Ala. May 5, 1989).
The request for administrative-judicial review must be made
in writing and mailed by certified mail to the CO who denied the
application within thirty-five calendar days of the date
specified on the Final Determination. 20 C.F.R.
§§ 656.26(b)(1); Superseal Manufacturing Co.,
90-INA-296 (Aug. 13, 1991).
Pursuant to 29 C.F.R. § 18.4(a), the time period for
requesting review begins the day following the date of the FD.
The terminal date is thirty-five calendar days following the
beginning date. SeeDelmar Family Dental Center,
88-INA-132 (Sept. 26, 1988) (en banc) (holding that 29
C.F.R. § 18.4(c)(3) does not extend the deadline for filing
requests for review to forty days after the date of the FD);
accordIllinois Masonic Medical Center, 89-INA-63
(Mar. 6, 1990) (request for review untimely when not mailed until
the 37th day following the Final Determination).
If a request for review is not mailed within thirtyfive
calendar days of the issuance of the Final Determination's denial
of labor certification, the denial becomes the final
determination of the Secretary of Labor. 20 C.F.R.
§§ 656.25(g)(2)(iv) and 656.26(b)(1).
Failure to file a request for review in a timely manner
constitutes a failure to exhaust available administrative
remedies. § 656.26(b)(2).
SeealsoBlarney Stone Bar &
Restaurant, 90-INA-67 (Mar. 27, 1991) (the CO's denial of
labor certification affirmed where the employer filed an untimely
rebuttal and an untimely request for review).
The late filing of the request for review may not be fatal
if the employer demonstrates "excusable neglect."
SeeSoccer Exports, Ltd., 89-INA-226 (Mar. 29,
1990) (holding that Fed. Rule of Civ. P. 6(b) is applicable to
requests for extensions of time to file a request for
review).
Excusable neglect is established by a showing of a
legitimate reason as to why a timely request could not have been
made. SeeSoccer Exports, Ltd., 89-INA-226 (Mar.
28, 1990) (employer offered no legitimate reason why motion for
extension could not have been submitted prior to the expiration
of the original deadline); Charleedane Industries,
88-INA-69 (Apr. 9, 1990) (newly obtained evidence did not
establish excusable neglect where the employer was aware of the
need for the evidence since the time of the NOF, approximately
five months earlier).
In Vexcel Corporation, 91-INA-138 (Dec. 5, 1991) (en
banc petition pending), a panel concluded that, where the Board
previously remanded a case for the CO to rule on a pending motion
for reconsideration and the CO denied the motion, at which time
the employer took no action for eight months, it was proper to
consider the matter despite an untimely appeal, as the employer
could have wrongly assumed that the Board retained jurisdiction
based upon the initial appeal.
Upon the filing of a timely motion for reconsideration, the
period for filing a request for review runs from the date of the
CO's order denying the motion for reconsideration or decision on
reconsideration. Meriko Tomaki Wong, 90-INA-407 (Jan. 27,
1992).
The CO does not have the authority to rule on whether a
request for administrative-judicial review is timely. Delmar
Family Dental Center, supra; International Dadlani,
Inc., 90-INA-250 (Apr. 27, 1990) (order of remand) (CO does
have authority, however, to rule on timeliness of motion for
reconsideration).
Under § 656.26(b)(1), a request for review shall be in
writing and shall clearly identify the particular labor
certification determination from which review is sought and shall
set forth the particular grounds for the request.
Where the request for review does not set forth specific
grounds for review and no brief is filed, the request for
review will be dismissed. North American Printing Ink Co.,
88-INA-42 (Mar. 31, 1988) (en banc); Bixby/Jalama
Ranch, 88-INA-449 (Mar. 14, 1990); Rank Enterprises,
Inc., 89-INA-124 (Nov. 13, 1989); The Little Mermaid
Restaurant, 88-INA-489 (Sept. 1, 1989).
A general statement of disagreement with the CO does not
constitute an assignment of error and such a request for review
will be dismissed. GCG Corp., 90-INA-498 (May 20, 1991).
SeealsoAjem Thread Rolling, 90-INA-412
(May 20, 1991).
Despite the general rule of dismissal where there is a
failure to specify the grounds for the request for review,
dismissal may not be appropriate where it would be:
unfair,
Midway Distributors, Inc., 87-INA-682 (Aug. 30,
1988) (remand was appropriate where the posture of the case
was so confusing that dismissal would be unfair),
or unduly harsh.
Wonder Fashion, 90-INA-97 (May 30, 1990) (order
vacating dismissal) (dismissal would be unduly harsh where
the employer had submitted timely briefs in two
"companion" appeals, but had failed to change the
docket number on the second brief which resulted in the two
briefs being placed in the appeal file of the first
appeal).
SeealsoGary M. Burke, 88-INA-547 and
Birkholm's Solvang Danish Bakery, 88-INA-548 (Apr. 17,
1990) (en banc) (order referring cases to panel for
consideration on merits), where the Board vacated dismissals
based on the failure to file a brief or state the particular
grounds for review in the request for review, where the employer
made an "uncontroverted affirmation that the U.S. Department
of Labor was timely served briefs." In those matters, the
employer had served the briefs on an "Administrative Law
Judge" at the same address of the CO in San Francisco.
The employer's withdrawal in its request for review of an
argument made in its rebuttal leaves the NOF allegation admitted.
Agha Khan Gems Corp., 88-INA-66 (Aug. 23,
1989).
