BALCA Grants Reconsideration - CO Abused Discretion

Posted On: December 21, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently granted an Employer reconsideration for a case in which the CO originally denied labor certification (LC) for an alien worker for the position of “Care Taker-Ranch Hand.”

After the Employer filed an LC on June 5, 2009 on behalf of an alien worker, the CO denied certification on February 23, 2010 citing that section M-1, which asks whether the form was completed by the employer, was incomplete. If an individual answers “no” then they must fill out Section M-2 to M-5 which ask questions on whether the information filled out on the application is true and correct to the best of their knowledge. Though neither “yes” nor “no” was checked in Section M-1, at the bottom of Section M-2 to M-5 the Customer Service Coordinator, Collette Reed, signed her name indicating that she prepared the documents. During a request for review on March 18, 2010 the Employer stated the failure to check “yes” or “no” in Section M-1 was a accidental error and submitted a completed form. The appeal was forwarded to the Board without review by the CO. The Employer stated during the appeal that they only wanted reconsideration of the case by the CO, not an appeal to the Board. The CO did not specify how he had chosen to handle the Employer’s request for review; the case was forwarded to the Board without a ruling. The Board tried to determine whether the CO abused his discretion when deciding not to reconsider the denial of the certification. After evaluating previous cases and precedents, BALCA found the Employment and Training Administration (ETA) failed to, “create a workable system to apply in every situation that can arise during the PERM filing process.”

In the instant case, the Board reviewed the Employer’s original request, “Request for Review of Denial of Form ETA 9098” and found that the Employer specifically meant for the CO to reconsider the decision, it was not intended for BALCA review. Further, the Board found that the CO did abuse his discretion by sending the request for review off to BALCA instead of reviewing it personally.

Accordingly, the Board granted the Employer’s request to send the case back for reconsideration by the CO.