Wednesday, November 30, 2022

Employment-Based Visas – Labor Certification – Procedure before Board of Alien Labor Certification Appeals

An employer who wishes to hire alien labor to fill a position must obtain a labor certification. A labor certification ensures that the employment of aliens will not adversely affect the United States labor market and that sufficient U.S. workers are not available to fill the position the employer is offering.

If an employer’s application for alien labor certification is denied, the employer may pursue administrative review through the Board of Alien Labor Certification Appeals (BALCA). BALCA consists of nine administrative law judges (ALJs), who consider and decide appeals of labor certification decisions made by Department of Labor (DOL) certifying officers. In almost all instances, BALCA restricts the factual basis for its decision to that available to the certifying officer who originally considered the labor certification application.

Who May Appeal

Generally speaking, those adversely affected by an unfavorable decision on a labor certification application may appeal. DOL regulations do not allow an affected alien to appeal to BALCA unless the employer who petitioned for the certification joins in the appeal.

How to Request Review

In the absence of excusable neglect, a request to appeal to BALCA must be filed with the certifying officer within 35 days of the officer’s final determination. The request for review must state the grounds for review. Any statements and briefs must be attached, as well as the documents that accompanied the certifying officer’s notice of denial. The certifying officer compiles an appeal file if review is requested and forwards the file to BALCA, with copies to the employer and the affected alien.

Procedure before BALCA

In most cases, three BALCA ALJs sit on a panel to determine the case. Once BALCA receives the appeal file, it sets a 21-day time frame within which the parties may submit briefs on the important issues in the case. In most cases, BALCA makes its decision using all of the relevant documentation, not holding hearings to take evidence. However, if a hearing is set, a designated panel usually conducts the hearing rather than the full BALCA. At hearings, parties have the right to be represented by counsel.

If a party fails to submit the proper documents, BALCA may dismiss the request for review. Otherwise, BALCA prepares a written decision, either affirming the denial of the certification, reversing the denial with directions to the certifying officer to grant certification, remanding the case for additional proceedings, or directing a hearing.

Reconsideration

BALCA may reconsider its final determination either on its own initiative or upon the request of a party, although it is not required to reconsider any decision. If a party wishes to request reconsideration, a motion must be filed within 10 days after BALCA’s final determination is issued. In most cases, BALCA will not grant a motion for reconsideration unless it finds either that there was a flaw in the judicial process or that it overlooked a material fact in making its decision.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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