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BALCA, Nov. 4, 2021
"While Employer correctly asserted that the CO improperly applied the Single Employer Test in considering Employer’s labor certification application, the question under administrative review is not just whether the CO applied the wrong test. Ultimately, the issue is whether the CO’s reasons for denial of certification were legally and factually sufficient. A full review of the record establishes that the CO’s final determination was legally insufficient because it was made using an inapplicable test (the Single Employer Test) that has never been formally adopted or subjected to notice-and-comment rulemaking. Whether the CO’s final determination was factually sufficient cannot be determined based on the record because the proper process was derailed by use of an improper test. The CO’s Notice of Deficiency applied the Single Employer Test and instructed Employer to cure the deficiencies stated in the notice by responding to questions specifically tied to that test. Employer’s response was necessarily tailored, therefore, to the CO’s instructions to follow the criteria of the Single Employer Test. What the CO’s concerns (if any) might have been regarding Employer’s application if it had been considered under the regulatory definitions of “employer” and “joint employment” cannot be determined on this record. Similarly, what Employer’s responses might have been to a Notice of Deficiency issued pursuant to those regulatory definitions also cannot be determined on this record. Consequently, it would be inappropriate for the undersigned to make a determination as to the factual sufficiency of the CO’s final determination when properly viewed through the lens of the regulatory definitions. This matter will, therefore, be remanded to the CO for further action, pursuant to 20 C.F.R. § 655.61(e). In particular, on remand the CO shall reconsider Employer’s application by reviewing its sufficiency in conjunction with the regulatory definitions of “employer” and “joint employment” set forth in 20 C.F.R. § 655.5. 5. Ruling. The Certifying Officer’s denial of Employer’s Application for Temporary Employment Certification is REMANDED. On remand, the Certifying Officer shall reconsider Employer’s application by reviewing its sufficiency in conjunction with the regulatory definitions of “employer” and “joint employment” set forth in 20 C.F.R. § 655.5."
[Hats off to Wendel Hall!]