A. Scope of CO's discretion
CO properly declined to consider evidence not submitted with the rebuttal and therefore the
evidence was not reviewable by the Board. Databyte Technology, Inc.,
93-INA-263 (Jun. 28, 1994). See also Tevere 84
Restaurant, 93- INA-269 (Aug. 17, 1994); Judy Roberts Productions,
94-INA- 113 (Nov. 10, 1994)(CO properly refused to reconsider based on newly submitted
evidence that could have been submitted with rebuttal); Dogan Constr.
Co., 94-INA-40 (Dec. 30, 1994).
The CO did not err in denying the Employer's motion for reconsideration and in refusing to
consider new evidence because Employer should have included the evidence as part of its
rebuttal. See Royal Antique Rugs, Inc., 90-INA-529 (Oct. 30,
1991). The Employer argued because "extensive additional information and
documentation has become available to Employer," that the CO should reconsider the
Employer's motion. The evidence consisted of a conversation between the state job service and
a pathologist about the position of a research associate. The Board declined to remand to the Co
with instructions to rule on the motion for reconsideration because Employer failed to state
why the evidence was not presented sooner. Mount Sinai Medical Ctr.,
94-INA-109 (June 27, 1995). See also Bearings Ltd.,
94-INA-302 (May 31, 1995) (remanding a case after the CO denied certification on the basis that
the
Employer had not provided requested arguments and rebuttal material concerning the
Employer's posting of a job notice where Employer argued that the notice material was hand
delivered with the its rebuttal at the time it was filed but where in the motion for reconsideration,
the CO failed to rule on timeliness of the submission of the notice material); Re/Max
Reality Group, 95-INA-15 (July 19, 1996) (declining to consider affidavits from
several of the Employer's employees discussing a phone conversation with an applicant because
evidence not submitted with the rebuttal cannot be considered by the Board).
It is an abuse of the CO's discretion to not accept evidence with a request for reconsideration
when the employer has not been given adequate prior opportunity to present such evidence.
Copper Range Co., 94-INA-316(June 27, 1995).
B. Newly obtained evidence
An employer's motion for reconsideration was properly denied where Employer
acknowledged that its rebuttal was inadequate and new evidence submitted with the post-FD
motion was an "entirely new application for labor certification."
Reliable Mortgage Consultants, 92-INA-321 (Aug. 4, 1993).
Evidence submitted in Employer's motion for reconsideration, that rejected U.S. applicant
was in fact neither a U.S. citizen or a permanent resident, was not newly obtained evidence
since that fact was indicated in applicant's employment authorization which was part of the
record upon which the final determination was made. Accordingly, it must be considered upon
review. Because the only ground for denying certification was the unlawful rejection of
that U.S. applicant, the CO's determination was reversed and certification was granted.
Metcalf & Eddy of Michigan, Inc., 92-INA-237 (Oct. 26, 1993).
1. Evidence not previously availableno new cases
2. No prior opportunity to present evidence
When employer submits evidence of mailing in a motion for reconsideration following a
denial based on failure to file rebuttal, fairness dictates that the CO examine that evidence
presented and, if sufficient, reconsider the decision. Upon review of the evidence presented,
however, the panel affirmed the CO's finding of untimely rebuttal. Andrea
Foods, 94-INA- 309 (Sep. 21, 1994).
3. Scope of Board's authority to consider evidence not
considered by COno new cases
VII. Offer to acquiesce if clarification not acceptedno
new cases
