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
- 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
- the request must set the particular
grounds for the request and including a copy of the Final
- 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
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.