BALCA upholds denial of Labor application – Employer failed to comply with Notice of Filing requirements

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 Slitting Supervisor.

The labor certification application was accepted by the CO in October of 2005. A few months later, the CO issued an Audit Notification to the Employer. Among other items, the Audit requested a copy of the Notice of Filing used for the alien worker’s labor application. The Employer responded by complying with the request and sending the Notice of Filing. In October of 2006, the CO issued a denial letter on the grounds that the Notice of Filing failed to contain the appropriate CO’s contact information including the physical address. Thereafter the Employer submitted a request for reconsideration, and only included a notice of entry of appearance of a new attorney; no argument or other information concerning the grounds for denial were provided. In September of 2008, the CO issued a letter of reconsideration finding that the denial of labor certification was valid. The CO noted that the Employer failed to provide any information relating to the missing information on the Notice of Filing. The CO then forwarded the case to the Board. New counsel for the Employer filed a brief arguing that the failure to provide the address of the CO was harmless error and therefore denial based upon a typographical error was a denial of due process. Counsel also stated that when the Employer was made aware of the omission, he agreed to repost the Notice of Filing. The CO appropriately filed an appellate brief stating that the Board had ruled on the issue of failure to include the address of the appropriate CO on the Notice of Filing in a 2007 case.

Upon BALCA review it was determined that the regulation at 20 C.F.R. § 656.10(d)(3) is controlling. It provides that the Notice of Filing must: (i) state that the notice is being provided in response to filing a labor certification application for the related job position; (ii) state that any person may provide information bearing on the application to the CO of the Department of Labor (DOL); (iii) provide the address of the appropriate CO; and (iv) be provided between 30 and 180 days before the filing of the application. The Board further provided that by not having the appropriate address of the CO posted, no one could contact the CO about any information related to the business practices of the company (wage and labor conditions, availability of workers, etc). Here, the Notice of Filing made no indication of how to contact a CO about the application, in direct violation of the controlling regulation. Additionally the reconsideration request did not contain any argument regarding the reason for denial. Not until the case reached the Board did Counsel for the Employer provide an argument. The Board stated that even if they were able to hear the new arguments, they were not convincing on the matter. In regards to the re-posting, the Board stated that there was no evidence of the offer in the Appeal File. Additionally, even if the offer was made it was discretionary upon the CO whether to direct a supervised recruitment, and therefore he was under no obligation to grant it.

Accordingly, the CO properly denied certification.