BALCA on 'Mailbox Rule' - Matter of Lenora Systems

Matter of Lenora Systems

"These cases involve application of the “Mailbox Rule” and just when an email is deemed to have been received. ... In denying the Applications based on the Employer’s failure to respond to the audit notification letters, the CO invokes the Mailbox Rule and applies it to email correspondence. We agree that the Mailbox Rule may be applied to email. ... Accordingly, while the CO has invoked the Mailbox Rule’s presumption of receipt, it is a weak presumption under the facts of these cases that we find rebutted not only by the Employer’s statements denying receipt, but also by the circumstantial evidence of the Employer’s lack of a motive to fail to respond to the audit notification letters and prompt response to the denial letters. We believe it unlikely that the Employer would have completely failed to respond to an audit notification if it had been received. DGN Technologies Inc., 2012-PER-01208 (Mar. 20, 2013) (citing Santana Gonzalez, 506 F.3d at 278, for the proposition that circumstantial evidence, such as lack of motive to fail to respond to government instruction, may support rebuttal of the presumption of delivery). We, therefore, find that the Employer has rebutted the presumption of having received the audit notification letters. We emphasize, however, that this Decision and Order remands these cases on procedural grounds for continued processing. We take no position and express no opinion on the merits of the Employer’s Applications. ORDER Based on the foregoing, IT IS HEREBY ORDERED that the Certifying Officer’s denials of labor certification in the above-captioned matters are VACATED and these matters are REMANDED to the Atlanta National Processing Center, Office of Foreign Labor Certification, for continued processing."