The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Chef.”
After certification was denied on May 25, 2007 because the company could not prove that it was a legitimate business, the Employer requested review of the case and an opportunity to submit evidence that it was a bona fide company. The Employer stated the notification of denial was not received until September 12, 2007and only after an email inquiry request had been sent about the case to the Atlanta Processing Center. The Employer asserted that there was no time to reply to the original denial letter and argued that the denial should be rescinded so that there was an opportunity to present evidence. The Employer did not respond to an Audit Notification issued by the CO on January 28, 2009 requesting documentation of recruitment efforts. After failing to respond to the Audit Notification, the CO denied certification on April 2, 2009. On April 14, 2009 the Employer argued the Audit Notification letter was never received and requested review but the CO did not grant the request. In the Employer’s statement of appeal to BALCA, the Employer argued that because there was no USPS tracking number attached to the Audit Notification there was no way of knowing whether the Audit Notification was delivered or received.
PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that a “substantial failure by the employer to provide required documentation will result in that application being denied under § 656.24…”
In the instant case, the Employer did not respond to the CO’s Audit Notification by the specified date, which would normally constitute a denial of certification. However, BALCA believed it was possible the Postal Service made a mistake in delivering the Audit Notification and as a result the Employer could not submit its response. The Board’s decision is strictly limited to the facts of this case.
Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded for further proceedings.