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.

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