Certifying Officers have the authority to reconsider a FD
prior to its becoming final. Harry Tancredi, 88-INA-441
(Dec. 1, 1988) (en banc); Royal Antique Rugs, Inc.,
90-INA-529 (Oct. 30, 1991).
Since a FD becomes the decision of the Secretary if a
request for review is not mailed within thirty-five calendar days
of the issuance of the FD, §§ 656.25(g)(2)(iv),
656.26(b)(1), the CO has the authority to reconsider the FD only
within this thirty-five day time limit. Harry Tancredi,
88-INA-441 (Dec. 1, 1988) (en banc); Charleedane
Industries, 88-INA-69 (Apr. 9, 1990).
It appears that Tancredi means that if a motion to
reconsider is made during the thirty-five day period following
issuance of the FD, the motion is timely and the CO has authority
to rule on the motion even though the ruling is not made until
after the thirty-five day period. See, e.g.,
Royal Antique Rugs, Inc., 90-INA-529 (Oct. 30, 1991)
(motion made during thirty-five day period
"timely").
The CO has the authority to rule on whether a request for
reconsideration was timely. International Dadlani, Inc.,
90-INA-250 (Apr. 27, 1990) (order of remand). This is in contrast
to a request for review: the CO does not have authority to rule
on whether request for review was timely. Seeid.
If a timely motion for reconsideration of the CO's FD is
made, the CO must decide whether that motion will be granted or
denied. Failure by the CO to rule on such a motion will result in
a remand by the Board. Charles Serouya & Son, Inc.,
88-INA-261 (Mar. 14, 1989) (en banc); Harry
Tancredi, 88-INA-441 (Dec. 1, 1988) (en banc);
Moffitt and Duffy, Inc., 91-INA-149 (Apr. 8, 1991) (per
curiam); American Telephone & Telegraph Co.,
90-INA-567 (Jan. 9, 1991) (order of remand); Saga Transport,
Inc., 89-INA-248 (Oct. 29, 1990); H.M. Carpet,
90-INA-398 (Aug. 14, 1990) (order of remand).
The Board, in Richard Clarke Associates, 90-INA-80
(May 13, 1992)(en banc), concluded that "the CO is required
to stated clearly whether he has denied an employer's request for
reconsideration . . . or has granted the request and, upon
reconsideration, affirmed the denial of certification."
A CO is not required to reconsider a denial of certification
whenever a motion to reconsider is filed. HarryTancredi, 88-INA-441 (Dec. 1, 1988) (en banc).
There may be occasions when the CO may summarily dispose of a
request for reconsideration; however, under some circumstances he
or she may be required to state the reasons for the
determination. Linen Star, 90-INA-438 (Dec. 7, 1990) (en
banc order of remand). For example:
In The Weck Corp. (d/b/a Gracious Homes),
90-INA-76 (Mar. 26, 1990), where the employer stated in its
request for reconsideration that its failure to delete
various job duties on rebuttal was an oversight, and where
the record tended to support that contention, it was
inappropriate for the CO to reject summarily the employer's
reconsideration request, particularly where the employer's
offer to delete appeared to cure the sole basis for the
denial of certification.
When an employer makes a good faith effort to clarify its
positions in its request for reconsideration, the CO must show
that she thoughtfully considered the request rather than
summarily dismissing it. Richard Clarke Associates,
90-INA-180 (June 6, 1991) (en banc review pending).
SeealsoLori Singer, 90-INA-342 (May
20, 1991) (CO abused his discretion by summarily denying the
employer's motion for reconsideration where the employer
attempted to comply with the CO's directive but used slightly
faulty wording in describing the work hours and overtime
pay).
One panel remanded a case to the CO where the CO had lost
the file, including a letter from the employer to the CO which
may have included a request for reconsideration, where
independent evidence indicated that the employer had sought
reconsideration but misnamed it "rebuttal," and where
the appeal file did not include a legible NOF or second NOF.
Amtrade Commodities, 88-INA-369 (June 22, 1989).
Where a motion to reconsider is grounded in allegations of
oversight, omission or inadvertence by the CO which, if credible,
would cast doubt upon the correctness of the FD, and the employer
had no previous opportunity to argue its position, the CO should
reconsider his or her decision. Harry Tancredi, 88-INA-441
(Dec. 1, 1988) (en banc) (where the FD is based on
untimely rebuttal the employer obviously has had no prior
opportunity to contend it filed a timely rebuttal).
A CO may deny a timely 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. Royal
Antique Rugs, Inc., 90-INA-529 (Oct. 30, 1991). The CO is not
required to accept the validity of evidence submitted on
reconsideration and change the outcome of the case. Harry
Tancredi, 88-INA-441 (Dec. 1, 1988) (en banc).
If the CO summarily denies a motion to reconsider that is
based on new or additional evidence, however, it may present a
problem for the Board's review of the case if it does not reveal
whether the CO considered evidence submitted with the motion.
Lee Baron Fashions, Inc., 89-INA-263 (Apr. 22, 1991).
Although evidence obtained and submitted after issuance of the FD
is generally not part of the record for review, where the CO does
in fact consider evidence submitted with a motion to reconsider,
such evidence may be considered by the Board on appeal.
See Chapter 26, III, B, 1 (Scope of Board Authority,
Jurisdiction and Review).
Where evidence submitted with a timely motion for
reconsideration was not available during the rebuttal period, it
may be an abuse of discretion for the CO not to reconsider. For
example, in Royal Antique Rugs, Inc., 90-INA-529 (Oct. 30,
1991), the employer did not have complete financial data to show
sufficiency of funds at the time of the rebuttal because it was a
new enterprise.
If the employer did not have a prior opportunity to present
evidence to support its position, it is an abuse of discretion
for the CO not to reconsider. For example, where the FD is based
on untimely rebuttal the employer obviously has had no prior
opportunity to submit evidence to support a contention that it
filed a timely rebuttal, Harry Tancredi, 88-INA-441 (Dec.
1, 1988) (en banc).
On several occasions, the Board has reversed the FD and
granted labor certification rather than remand to the CO where
the CO has been recalcitrant or unreasonable in refusing to
consider evidence that could not have been obtained during the
rebuttal period, where the motion is meritorious and further
factfinding is not needed to grant certification:
Royal Antique Rugs, Inc., 90-INA-529 (Oct. 30,
1991) (Board had previously remanded for CO to rule on a
motion to reconsider; CO ruled that he did not have the
authority to reconsider and that the new evidence would not
change the FD; the panel reviewed evidence filed with motion
that was not available during the rebuttal period and found
that it cured the only deficiency cited by the CO).
Lee Baron Fashions, Inc., 89-INA-263 (Apr. 22,
1991) (employer had requested an applicant to send a copy of
his resume, but the applicant did not send it until after
the rebuttal period; CO summarily dismissed motion for
reconsideration so Board could not know whether he
considered the new evidence; panel reviewed the resume and
found that it established that the U.S. applicant was not
qualified).
When an employer offers to acquiesce to the CO's position if
the clarification presented in a motion to reconsider is not
accepted, the CO cannot meet the offer with silence but must
state reasons for refusing it. Richard Clarke Associates,
90-INA-180 (June 6, 1991) (en banc review pending).
SeealsoH M Carpet, 90-INA-398 (Aug.
14, 1990) (order of remand) (employer offered in timely motion
for reconsideration to amend application to pay for overtime as
needed).