BALCA upholds denial of LC based on suspension of counsel

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the Final Determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “tailor – textile, apparel & furnishing worker.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a warehouse filed a LC on behalf of an alien worker in April of 2001. In December 2001, the employer requested conversion to “reduction in recruitment” processing by letter and attached a new ETA 750A Form. In July 2005, the Philadelphia Backlog Processing Center sent a letter to the employer requesting a response to whether or not the employer wished to continue to pursue the application. Counsel for the employer responded indicating that it wished to continue processing the application, and that a new attorney was entering an appearance on behalf of the Employer and the Alien because their previous attorney was no longer practicing law. New counsel submitted both the original ETA 750-A and B forms and new ETA 750A and B forms because the originals were not of high quality and included several omissions or incomplete answers. Subsequently in September 2006, the CO issued a Notice of Findings (NOF). The NOF indicated that the previous attorney who represented the employer and the alien had been suspended from practicing law, and therefore requested the Employer to indicate whether it wish to withdraw the application, remove the attorney and continue without representation or identify a new representative and continue with processing. Additionally, the CO indicated that additional information was required to determine if the application represented a bona fide job opportunity open to qualified U.S. workers. Specifically, nine items of documentation were listed. The ninth item stated, “If you are represented by new counsel, please submit an updated G-28 form. Please note that representation by new counsel does not cure the above finding. The CO emphasized that the information requested must be provided in order to rebut the NOF. The NOF was addressed and mailed to the previous attorney rather than the employer’s new counsel. In the rebuttal, the Employer argued that the NOF was inconsistent with the July 2005 letter. Thereafter, the CO issued a final determination denying the application because the employer failed to provide the information requested in the NOF. The Employer requested BALCA review.

Upon BALCA review, it was determined that an employer’s failure to produce documentation reasonably requested by the CO will result in a denial of labor certification. An employer has the burden to satisfactorily respond or rebut to all findings in the NOF. In the instant case, the CO issued the NOF proposing to deny certification based on the fact that the previous attorney had represented the petitioning employer. Previous counsel’s involvement raised the question of whether the application presented bona fide employment. The NOF clearly indicated that the fact that an employer might obtain new counsel would not be considered a sufficient rebuttal to the NOF. While the NOF erroneously failed to acknowledge the fact that the Employer had obtained new counsel, it clearly gave the Employer notice of the basis upon which the decision to issue the NOF was made. The NOF specifically indicated the additional information that the CO sought to make its final determination on the application.

Accordingly, since the employer did not submit all the information requested, the CO’s findings are deemed admitted. Since the Employer did not submit the requested documentation on rebuttal to establish a bona fide job opportunity exists, a remand for supervised recruitment is not warranted.