When an employer has had a labor certification denied by the National Processing Center (NPC), the employer has three options for seeking the review of the certifying officer's decision:
- Request for Reconsideration that is filed in writing with the Certifying Officer within 30 calendar days of the determination;
- Request for Reconsideration based on alleged Department error; or
- Request for Review before the Board of Alien Labor Certification Appeals (BALCA).
In this note, we will focus on option number three: BALCA.
BALCA was created by regulation in April 1987 to review certifying officers' decisions. The intention of BALCA was to create uniformity and consistency in the review process by Administrative Law Judges (ALJs). BALCA judges are actually hear various types of federal administrative law cases, and when they decide on PERM cases, they use the designation of BALCA.
BALCA has two divisions: one deals with PERM cases under 20 CFR 656, and the other with H-2B nonagricultural guest worker cases under 20 CFR 655. The PERM divisions consist of twenty individual administrative law judges located in ALJ courts in Washington DC, Boston, Massachusetts, Cherry Hill, New Jersey, Cincinnati, Ohio, Metairie, Louisiana, Newport News, Virginia, Pittsburgh, Pennsylvania, and San Francisco, California. The ALJs are assigned to review cases arising out of alien labor certification regulations (20 CFR 656) and include Requests for Review of denials or revocation of labor certification, debarment, and prevailing wage determinations (PWDs).
Requests for Review must be made to BALCA within 30 days of the date of determination to the Certifying Office, and must include specific grounds for the request.
There are four specific jurisdictional requirements that must be met to avoid dismissal of the appeal, namely:
- the request must be “supplied” within thirty (30) days of the date of the determination to the certifying officer who denied the application or revoked the certification,
- the request must clearly identify the particular labor certification determination for which review is sought,
- the request must set the particular grounds for the request and including a copy of the Final Determination, and
- the request must include a copy of the Final Determination.
Please note that appeals may be summarily dismissed for lack of particularity. While in U.S. jurisprudence parties may normally state a cause of action with general language alleging issues and damages, appeals to BALCA must be worded with great detail. Moreover, BALCA appeals cannot raise issues of law or fact that have not previously been placed into the record. Instead, there are opportunities to enter documentation into the record under very limited conditions: during an audit, in response to a Request for Information (RIF), or sometimes by a request for reconsideration filed in response to a final determination (but only if there has not previously been an opportunity to clarify a mistake in the record.) The purpose of restricting BALCA appeals arises out of the general purpose of PERM, which is to streamline labor certification processing by means of electronic review instead of time-consuming agency review as was common before the introduction of PERM in 2004.
Upon the receipt of a Request for Review, the certifying officer must immediately assemble an indexed Appeal File in chronological order. The certifying officer must then send the appeal file to BALCA's Office of Administrative Law Judges, and a copy of the appeal file to the employer. In addition, employers may file a Freedom of Information Act (FOIA) requests to the certifying officer at any time or to BALCA after docketing. This practice of filing two FOIAs, one to the certifying officer and one to BALCA, may be helpful in doubtful cases to confirm that the copies received from the C.O. are in fact complete and include every document in the record file.
The employer may then furnish or suggest directly to BALCA the addition of any documentation that is not in the appeal file, but that was submitted to the Department of Labor (DOL) before the issuance of the Final Determination. The employer must submit such documentation in writing, and must send a copy to the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, US Department of Labor, Washington DC 20210.
In considering the Requests for Review, the Board must afford all parties thirty (30) days to submit or decline any appropriate Statement of Position or Legal Brief. The certifying officer is to be represented solely by the Solicitor of Labor or the Solicitor's designed representative. BALCA now provides a 15-day letter to confirm that the employer wishes to continue with the appeal and an additional 30 days after that to provide the Statement of Position or Legal Brief.
For more general inquiries about BALCA please contact: Office of Administrative Law Judges, United States Department of Labor, Suite 400 North, 800 K Street, NW, Washington DC 20001-8002. Phone: 202-693-7300, or Fax: 202-693-7365.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.