Pursuant to § 656.25(c), if a CO does not grant
certification, an NOF must be issued which states:
the date on which the NOF was issued;
the specific grounds for issuing the NOF; and
the date by which a rebuttal must be made.
The Board held that "[d]enying labor certification in
the Final Determination on grounds not first raised in the
warning Notice of Findings violates section 656.25 and denies due
process." North Shore Health Plan, 90-INA-60 (June
30, 1992)(en banc).
The NOF must give notice which is adequate to provide the
employer an opportunity to rebut or cure the alleged defects.
Downey Orthopedic Medical Group, 87-INA-674 (Mar. 16,
1988) (en banc).
An adequate notice of deficiencies should identify the
section or subsection allegedly violated, the nature of the
violation, the evidence supporting the challenge, and
instructions for rebutting or curing the violation.
The NOF must identify which section or subsection of the
regulations the employer allegedly violated. Flemah, Inc.,
88-INA-62 (Feb. 21, 1989) (en banc).
Stating the section or subsection violated is a necessary,
but not sufficient, element of the NOF. Merely summarizing the
regulations in the NOF is not sufficient notice of alleged
deficiencies. University of Utah, 87-INA-702 (May 9, 1988)
(language of job notice not clearly challenged).
The NOF must state with specificity how the employer
allegedly violated a section or subsection of the regulations.
Flemah, Inc., 88-INA-62 (Feb. 21, 1989) (en
banc).
The NOF should not be mere boilerplate. The Board observed
in Sizzler Restaurants International, 88-INA-123 (Jan. 9,
1989) (en banc), that boilerplate NOFs "often lead to
inadequate notice of the alleged violations, due to their lack of
specificity and failure to address the facts of the application
being considered. In addition, such form notices are often
confusing, precluding effective rebuttal."
When a boilerplate NOF causes or contributes to an
employer's confusion:
the matter may be remanded to the CO for clarification,
Mere boilerplate in the NOF may result in a remand to
the CO. Sue Chiang, 89-INA-77 (May 25, 1990).
or certification may be granted.
In Belle Mayer, 89-INA-332 (Sept. 5, 1990), the
CO, using a largely boilerplate NOF, included a cursory\
reference to readvertising "showing the
daily hourly wage." Except for the lack of proper
readvertisement (the ad incorrectly listed only the higher
overtime wage), all other deficiencies were considered
resolved in the FD. Because of the confusing boilerplate in
the NOF, the employer's failure to respond completely to the
advertisement issue was excused. SeealsoThe Kroenke Group, 90-INA-318 (July 12, 1991).
An employer must be advised of the evidence being used
against it so that it has an opportunity to rebut that evidence.
Shaw's Crab House, 87-INA-714 (Sept. 30, 1988) (en
banc).
An NOF which challenges the employer's compliance with a
regulation, lists specific evidence supporting the challenge, but
does not list all of the evidence which might support the
challenge, may mislead an employer to focus its rebuttal on only
the listed evidence. Since such an NOF does not give the employer
adequate notice of the alleged defect, the matter may be remanded
for a new NOF. Patisserie Suisse, Inc., 90-INA-131 (Oct.
16, 1991); Orient Express Fast Food, Inc., 89-INA-270
(Aug. 27, 1990), discussed in Chapter 30, II, B (Sufficiency of
Funds to Pay Salary).
In Patisserie Suisse, Inc., 90-INA-131 (Oct.
16, 1991), the CO cited only one ground for his challenge to
the existence of an employer/employee relationship between
the employer and the alien, although the record contained
other evidence which might have supported the challenge, and
the panel remanded the case to the CO to issue a new NOF and
allow the employer to submit rebuttal evidence.
CompareAltobeli's Fine Italian Cuisine,
90-INA-130 (Oct. 16, 1991) (certification granted where CO's
ground for finding that job was not clearly open was
meritless, and record did not contain any other evidence to
sustain finding).
The NOF must specify what the employer must show to rebut or
cure the CO's findings; otherwise the employer is deprived of a
full opportunity to rebut. Peter Hsieh, 88-INA-540 (Nov.
30, 1989) (NOF did not state how to rebut).
Where the NOF did not offer the employer the option of
readvertising without the allegedly restrictive requirement
as the employer offered in request for review the case was
remanded to the CO. Sue Chiang, 89-INA-77 (May 25,
1990).
If an unclear or ambiguous NOF causes or contributes to an
employer's confusion, the matter may be remanded to the CO for
clarification and to give the employer an opportunity to rebut.
See, e.g., Patisserie Suisse, Inc.,
90-INA-131 (Oct. 16, 1991); Poultry Classics, 91-INA-68
(June 21, 1991); Toys "R" Us, 89-INA-345 (Dec.
10, 1990); Sue Chiang, 89-INA-77 (May 25, 1990);
American Candy Manufacturing Corp., 88-INA-274 (Oct. 27,
1989); Hudson Tool & Die Company, 88-INA-415 (Oct. 4,
1989); Dr. Joseph Maghen, 88-INA-335 (Aug. 8, 1989).
ButseeNorth Shore Health Plan,
90-INA-60 (Apr. 8, 1991) (en banc review pending), in Chapter 11
(Evidence), which indicates that, instead of remanding, a panel
may consider evidence submitted with the employer's request for
review if the CO did not give timely notice of an alleged
defect.
The disposition of a case may be influenced by whether the
employer made reasonable efforts to comply with, or seek
clarification of, a defective NOF. For example, cases may be
remanded where:
the employer reasonably interprets and complies with
the NOF. American Candy Manufacturing Corp.,
88-INA-274 (Oct. 27, 1989).
the NOF is ambiguous, the employer requests
clarification, the CO does not adequately explain the
challenge, and the employer makes a reasonable effort to
comply. Toys "R" Us, 89-INA-345 (Dec. 10,
1990).
the employer attempts in good faith to comply with the
CO's instructions, the CO fails to clarify her requests for
corrective action and the CO's reasoning first becomes
apparent in the FD. Hudson Tool & Die Company,
88-INA-415 (Oct. 4, 1989).
If an employer reasonably misinterprets the first NOF, and
addresses the wrong issue, then the CO should issue another NOF
rather than denying certification. For example, if the NOF is
unclear, and does not identify the specific section of the
regulations upon which the proposed denial of certification is
based, and the employer's rebuttal mistakenly addresses the wrong
issue, then the CO should issue another NOF rather than denying
certification. Mrs. Nancy Johnstone, 87-INA-541 (May 31,
1989) (en banc).
If the NOF provides sufficient notice of the proposed basis
for denial, despite the CO's failure to comply with the
requirements discussed supra Division II, B, the challenge
may be considered to be properly made.
In Liaison Center of the General Chamber of Com-
merce of the Republic of China, 90-INA-140 (Apr. 29,
1991), the CO cited § 656.24(b)(2)(ii) instead of
§ 656.21(b)(7), but the NOF clearly placed the employer
on notice of the basis for the denial.
An employer's treatment of an issue in its rebuttal may be one
indication that the NOF provided adequate notice.
In Anderson-Mraz Design, 90-INA-142 (May 30,
1991), the NOF did not specifically cite
§ 656.21(b)(6), but the employer was on notice of the
alleged violation and addressed the issue on rebuttal.