Where a CO determines that labor certification must be
denied following review of an employer's rebuttal,
§ 656.25(g)(2) requires the issuance of an FD which:
contains the date of the determination;
states the reasons for the determination;
quotes the request for review procedures;
advises that if a request for review is not made
within the specified time, the denial will become the
final determination of the Secretary.
An FD must identify the § or subsection of the
regulations violated and the nature of the violation. It must
rely solely on issues raised and evidence discussed in an NOF. It
must also state the reasons for rejecting the employer's rebuttal
evidence and arguments. In some cases, a technical error may not
invalidate an FD.
The FD must state with specificity how the employer violated
a section or subsection of the regulations. Flemah, Inc.,
88-INA-62 (Feb. 21, 1989) (en banc).
A CO cannot raise an issue for the first time in the FD.
Marathon Hosiery Co., Inc., 88-INA-420 (May 4, 1989)
(en banc); Dr. & Mrs. Fredric Witkin,
87-INA-532 (Feb. 28, 1989) (en banc); Dr. Mary
Zumot, 89-INA-35 (Nov. 4, 1991); Santa Barbara Immigration
Center, 90-INA-307 (Oct. 31, 1991); Immuno Biological
Laboratories, 90-INA-22 (July 9, 1991); Garland Community
Hospital, 89-INA-217 (June 20, 1991); Prime Clinical
Systems, Inc., 88-INA-530 (Feb. 9, 1990); Jose Eber,
88-INA-100 (Oct. 3, 1989); Maksam Investments, Inc.,
88-INA-122 (July 19, 1989); Teh TungShinn,
88-INA-16 (Feb. 16, 1989); Steamship (Houston), Inc.,
88-INA-73 (May 23, 1988).
If the CO fails to base his denial on an issue or a ground
raised in an NOF, the result on appeal may be:
the reversal of the denial of certification,
Counterpoint Development Co., 89-INA-153 (Mar.
12, 1990) (FD was confusing and disingenuous, and failed to
address issue raised in NOF).
or a remand to the CO for the clarification of the issue and the
issuance of a new NOF.
Dr. Mary Zumot, 89-INA-35 (Nov. 4, 1991) (hap-
hazard FD raised new issue and did not address issue raised
in NOF).
Daniel and Margery Callahan, 90-INA-201 (Sept.
3, 1991) (where the CO challenged the existence of a bona
fide job opportunity on one ground in his NOF, but
ultimately found that no bona fide job opportunity existed
on another ground, the panel remanded the case to allow the
employer to rebut the second ground; the panel suggested
that issuance of second NOF was appropriate course when CO
changed rationale for finding no bona fide job
opportunity).
Hudson Tool & Die Company, 88-INA-145 (Oct.
4, 1989) (employer attempted in good faith to comply with
CO's instructions, CO failed to clarify requests for
corrective action, and thrust of CO's reasoning first
apparent in FD).
The FD may not deny certification on the basis of evidence
not cited in the NOF. Shaw's Crab House, 87-INA-714 (Sept.
30, 1988) (en banc); Marathon Hosiery Co., Inc.,
88-INA-420 (May 4, 1989) (en banc); Clarkston
MedicalGroup, 87-INA-718 (Oct. 18, 1988).
If a CO obtains new evidence refuting an employer's
rebuttal, he may not deny certification based on the new evidence
without first issuing another NOF and giving the employer an
opportunity to rebut. Shaw's Crab House, 87-INA-714 (Sept.
30, 1988) (en banc).
The FD must discuss the employer's rebuttal evidence and
argument. Seesupra Division II, E, 2. Of course,
only that evidence which was timely submitted need be discussed.
Fernando Jewelry Co., 91-INA-6 (Apr. 30, 1991) (employer
submitted one timely and one untimely portion of evidence during
rebuttal, and CO improperly refused to consider the timely
submission); seealso Chapter 19, II, G (Rebuttal),
regarding consequences of failing to file a timely rebuttal.
If the FD does not address the employer's timely rebuttal
evidence and arguments,
the challenge may be deemed to be
successfully rebutted and not at issue before BALCA,
Barbara Harris, 88-INA-392 (Apr. 5,
1989);
the matter may be remanded,
Scientific Research Associates, 89-INA-32 (Feb.
9, 1990), Serve Fashion, Inc., 90-INA-27 (Dec. 7,
1990) (FD discounted evidence in appeal file without
explanation);
or the denial may be reversed.
Houston Graduate School of Theology, 90-INA-491
(Dec. 6, 1991) (CO ignored and mischaracterized employer's
rebuttal concerning alien's qualifications).
Dr. Mary Zumot, 89-INA-35 (Nov. 4, 1991) (CO
failed to address employer's rebuttal argument that privacy
interests protected her disclosure of joint income tax
returns, and failed to discuss employer's financial capacity
to pay alien's salary).
In cases where the FD does not discuss the employer's
rebuttal evidence and arguments, the disposition of the case may
be affected by the persuasiveness of the rebuttal. In cases where
the employer's rebuttal is persuasive, a reversal may be
warranted.
The denial of certification was reversed in the following
cases:
Duarte Gallery, Inc., 88-INA-92 (Oct. 11, 1989)
(detailed rebuttal established that requirement did not
exceed Dictionary of Occupational Titles and was normally
required for job).
Soloman Adam Dahni, 88-INA-391 (July 3, 1989)
(rebuttal supplied primafacie response to
issues raised in the NOF).
Quincy School Community Council, 88-INA-81
(Feb. 21, 1989) (en banc) (detailed rebuttal
established business necessity).
Allied Towing Service, 88-INA-46 (Jan. 9, 1989)
(employer provided rationale for rejecting each U.S.
applicant).
A technical error may not invalidate an FD, if the employer
has not been harmed by the error. For instance, where a CO
erroneously issued an NOF rather than an FD, he was permitted to
correct the error in the absence of any prejudice to the
employer. JLM Industries, Inc., 88-INA-80 (Sept. 30,
1988).
Under some circumstances, a CO should not issue an FD after
reviewing an employer's rebuttal. If the employer offers to cure
a defect and readvertise, the CO should allow it to do so. And,
if the employer reasonably misinterprets and responds to the NOF,
the CO should clarify his grounds in a second NOF and give the
employer another opportunity to rebut.
Issuing an FD denying certification may be inappropriate if
the employer's rebuttal contains an offer to cure a defect and
readvertise. For instance:
Where the employer lists inconsistent requirements on
the application, job notice, advertisement and other documents,
but
its rebuttal indicates a willingness to clarify and amend the
requirements, the CO should address the employer's offer. Mash
International Trading Co., Inc., 90-INA-170 (June 5, 1991)
(on remand, employer directed to amend application and CO
directed to consider amended application).
Where the employer's rebuttal establishes that the
questioned job requirements arise from business necessity, and
agrees to make the changes recommended by the CO, the CO should
permit the employer to make the changes and readvertise instead
of denying certification. Dr. Jitendra Bharucha, 89-INA-25
(Feb. 9, 1990). SeealsoMr. & Mrs. Herbert
G. Peabody, 90-INA-230 (Apr. 30, 1991).
Since an employer cannot predict whether its rebuttal
evidence will be persuasive, its offer to cure a defect
may be conditioned on a finding that its rebuttal evidence is not
persuasive. A. Smile, Inc., 89-INA-1 (Mar. 6, 1990).
If an employer attempts to justify a requirement
deemed "unduly restrictive" by the CO, and
also expresses a willingness to delete the restriction
and readvertise, and if the CO is not persuaded by the
justification, then the CO must offer the employer the
opportunity to readvertise. A. Smile, Inc.,
89-INA-1 (Mar. 6, 1990).
If an employer offers to readvertise if the CO is not
persuaded by its rebuttal arguments, the CO should grant the
employer's request for an extension of time to file rebuttal, so
that the employer may readvertise. Magnesium Alloy Products
Co., 90-INA-174 (Mar. 27, 1991).
See Chapter 19, III (Rebuttal), regarding CO's
discretion in granting requests for extension of time.
If, on rebuttal, an employer asks the CO to waive the
advertising requirement, but does not refuse to readvertise, the
CO should allow employer to readvertise after denying the request
for waiver. Clara Luz Weise, 90-INA-247 (June 24, 1991).
SeealsoJohn & Winnie Ng, 90-INA-134
(Apr. 30, 1991)
A case was remanded where the CO "technically"
gave the employer notice of the basis for his denial in the NOF
but such notice was in "a catch-all statement" which
"masked" the CO's objection. Motorola Communications
& Electronics, Inc., 91-INA-278 (Feb. 23, 1993).
A case was remanded where the employer's "failure to
fully rebut the CO's Notice of Findings may have been due, in
part, to the CO's lack of specificity . . .." Gobi
Primak, Inc., 92-INA-161 (Mar. 11, 1993).
See Chapter 17, II, D (Notice of Findings), regarding
the issuance of a second NOF if the employer reasonably
misinterprets the first NOF.
The panel remanded a case where the employer misinterpreted
a local job service's recommended change in its job requirements
which resulted in the job being advertised without a necessary
requirement. Advanced Machinery & Engineering Co.,
91-INA-221 (Feb. 1, 1993).
The panel remanded a case where the CO "was not aware
of the Employer's amendment to the (ETA-750) application . . .
when the NOF was issued . . . as no reference was made to the
Employer's amendment" because the employer mailed it to an
incorrect address. Montessori Academy, 92-INA-66 (Feb. 17,
1993).
The denial of labor certification was reversed where the CO
erroneously concluded that the employer did not provide certified
mail receipts demonstrating its contact of U.S. workers. As
noted in the employer s motion for reconsideration before the CO,
copies of the receipts were submitted along with its recruitment
report to the state job service which should have, in turn, been
forwarded to the CO. The panel concluded that the CO abused her
discretion in denying the motion and not using the opportunity
to correct her erroneous belief that the receipts were not
provided with the report of recruitment from the state job
service. The panel concluded that, with the receipts evidencing
contact of the applicants, labor certification should have been
granted. Injectron Corp., 92-INA-359 (July 12, 1993).
A case was remanded where the CO improperly limited the
employer's rebuttal to require that it document that its
"position presently constitutes an offer of
permanent, full-time employment (emphasis in original)" and
failed to advise the employer that, in accordance with H.R.
Enterprises, Inc., 89-INA-279 (June 25, 1990), the employer
could also submit evidence of a definite plan for expansion.
Star City Video, 92-INA-67 (Mar. 8, 1993).
A case was remanded where the CO erroneously concluded that
the employer failed to filed a recruitment report. The CO also
asserted that the employer failed to contact U.S. workers, yet
the employer "furnished certified mail receipts about which
the CO made no comment." The employer, on the other hand,
failed to advertise the job with a referral to the state
employment service. The panel noted that the confusing posture of
the case supported a remand "so that the CO and the
Employers may determine what their actual respective positions
are . . .." Hasmukh R. & Ranjan H. Parekh,
92-INA-53 (Mar. 24, 1993).
Labor certification was granted where the record supported a
finding that the employer documented its recruitment effort for
the job offered where [t]he CO s objections in both Notices of
Findings appear to be based on the mistaken assumption that the
employer had conducted only one recruitment effort. The CO
acknowledged this error in the FD but stated that the
advertisement did not conform to the usual circulation given
city vacancy announcements. The panel noted that this assertion
was not supported by the record and that the employer was not
given any opportunity to rebut the allegation. City of Los
Angeles, Dept. of Public Works, 91-INA-336 (Aug. 4, 1993).
A denial of labor certification was vacated and the case
remanded where a U.S. was rejected without an interview because
his resume did not list hand sanding experience, but a cover
letter from the applicant, which the employer denied receiving,
did list such experience. The CO challenged the employer's
rejection based upon the applicant's resume but likewise did not
mention the cover letter. The panel noted that the applicant's
resume did not list any qualifying experience, but the cover
letter did. Thus, it concluded that, as neither the employer nor
the CO received the applicant's cover letter, the case was
remanded to permit readvertisement of the position. Best
Developing Co., 92-INA-276 (Apr. 28, 1993).
Denial of certification based on failure to document
rejection of one U.S. applicant out of 22 inappropriate where
employer claims never to have received resume of that U.S.
applicant and: (1) there was another applicant with the same
last name; (2) employer s rebuttal statements were consistent
with it being unaware of second applicant with identical last
name; (3) state employment agency sent transmittal noting only
21 refs ; and, (4) employer included all other U.S. applicants
in its recruitment report. The panel concluded that it was
unlikely that employer purposefully withheld its report on the
applicant in question. Moreover, because there was no evidence
that the U.S. applicant at issue was qualified for the position,
and the employer exhibited a good-faith recruitment effort
otherwise, certification was deemed appropriate. William B.
Tabler Architects, 93-INA-52 (Dec. 16, 1993).
A panel granted employer's motion to reopen and reconsider
where employer persuasively contended that neither it nor its
counsel was served with copies of the panel's decision and order
vacating the CO's Final Determination and remanding the case to
allow employer 60 days to comply with the CO's Notice of
Findings. Because employer and counsel were not served with that
decision and order they did not comply with that decision and
order and the CO issued another Final Determination denying
certification. The panel again remanded the case to allow
employer another 60 days to comply with the NOF.
International Paper, 91-INA-333 (Mar. 17, 1994).
