BALCA on PERM Sec. K Remands - Pioneers Memorial Healthcare

Pioneers Memorial Healthcare, Dec. 23, 2015- "In August 2015, the Employer filed two motions requesting that the Board reopen and remand the appeal. The Employer explained that after its appeal was withdrawn the Department of Labor changed its position on cases involving Section K and non-experience qualifications. OFLC stated that it would reverse denials that were based on a missing non-experience qualification if that was the sole reason the case had been denied. The Employer also included an email from the Senior Trial Attorney with the Office of the Solicitor stating that the CO would not object to a request to reopen. The Board has previously looked to Federal Rule of Civil Procedure 60(b) for guidance on reopening matters. See Intel Corporation, 2013-PER-3071 (Feb. 20, 2014). Rule 60(b)(6) allows for relief from a final order for “any other reason that justifies relief.” This relief is reserved for extraordinary circumstances. Intel Corporation, at 5. In this case, the CO, not the Employer, asked that the case be remanded for certification and OFLC indicated its reversal of position on these types of Section K denial cases. We find that the CO’s willingness to grant certification, coupled with OFLC’s policy change, constitutes an extraordinary circumstance that allows us to grant relief pursuant to Federal Rule of Civil Procedure 60(b)(6). We therefore will order the granting of certification."