Important New Developments on Requests for Review in Labor Cert Cases

   By William A. Stock, Partner, Klasko, Rulon, Stock & Seltzer, LLP                                            

The Board of Alien Labor Certification Appeals released a decision November 16 that is the biggest thing since HealthAmerica (2006 BALCA LEXIS 168, where the employer mistyped the date in the Form ETA-9089, so it seemed that a required Sunday ad was published on another day) and creates a whole analytical framework around the issue of what’s properly before BALCA on a request for review filed after or instead of a motion to reconsider, and what the Certifying Officer has to consider on a request for reconsideration.

The case is Denizel Gunnels-d/b/a Gunnels Arabians, 2010-PER-00628. Also released that day were a couple of other cases that make a little clearer how the new Gunnels rule is going to apply in practice. The first is CVS RX Services, 2010-PER-01275 & 01108 (remanded to allow the employer’s arguments to be considered by the CO), and Techdemocracy LLC, 2009-PER-00459 (Cannot substitute evidence on reconsideration/appeal, even the kind of evidence employers keep).

The CVS case involved the employer’s requirements for a pharmacist and a “request for review” that, nonetheless, asked the CO to grant the case in the exercise of discretion. BALCA held that the employer preserved the issue for review, but that the evidence presented on the issue could not be considered by BALCA in the first instance, and had to be considered by the CO. In Techdemocracy the employer included a faulty web advertisement (containing a wage below prevailing) in response to the audit notice. After denial, the employer tried to include a different web advertisement run around the same time.  BALCA held that the employer was stuck with what it had sent to the CO, which was a proper ground for denial.

HealthAmerica was summarized in the October 15, 2006, issue of Bender’s Immigration Bulletin (at 11 Bender’s Immigr. Bull. 1201). More commentary on HealthAmerica is available in an article by Josie Gonzalez and Ron Wada, Matter of HealthAmerica, A Landmark BALCA Decision, 11 Bender’s Immigration Bulletin 1093-98 (Sept. 15, 2006). More on review of labor certification denials is in Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure § 44.12[3].