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Bloggings: November 14, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

November 12, 2007

How Not to Miss Audit & Appeal Deadlines!

I had the pleasure to speak recently with Nathan Waxman, a labor cert aficionado, who called my attention to some deficiencies in the PERM regulation regarding deadlines for responding to DOL findings. Nathan is a regular at Labor Cert seminars, conferences and workshops, and will also be a speaker at our November 30 workshop in NYC.

After going over the PERM Rule, we noted that, while the Rule generally provides 30 days to respond to audits and appeals, the language is vague as to whether the response has to be mailed on the 30th day or received by DOL on the 30th day. The distinction is important, but has been overlooked by DOL.

Under the pre-PERM rule, all responses to the SWA had to be received at the SWA's office within 45 days, however, all responses to Notices of Findings had to be mailed by certified mail no later than the 35th day (therefore arriving after the fact). In the first instance, the day of receipt is important, and in the second instance the date of mailing is important.

Also under the pre-PERM rule, there was no such requirement regarding remands from the CO (only remands from the SWA were subject to a 45-day rule). As a result, CO's could not issue a 45-day remand letter. Their remands were silent on this issue. Theoretically, one could have responded to a COI"'s remand anytime thereafter, since the rule did not limit the time to reply. Of course, the CO could solve this problem by issuing a Notice of Findings instead of a remand. Legally speaking, NOF's should only have been issued where a finding of inadequacy was made, and not when the CO wanted to go on a fishing expedition. The issue whether a CO could issue an NOF in lieu of a remand never came before BALCA. Consequently, the CO's were never admonished for this procedural transgeression.

Now under PERM, we are perplexed how to respond within 30 days. Note the following distinctions in language used in the PERM rule:

(1) 656.20(a)(2) (Audit procedures.) "Specify a date, 30 days from the date of the audit letter, by which the required documentation must be submitted..."

(2) 656.21(f) (Supervised recruitment.) "The employer shall supply the CO with the required documentation or information within 30 days of the date of the request. If the employer does not do so, the CO shall deny the application."

(3) 656.24(a)(1)(i) (Labor certification determinations.) "Advise that failure to request review within 30 days of the date of the determination....constitutes a failure to exhaust administrative remedies."

(4) 656.24(g)(1)( (Reconsideration.) "The employer may request reconsideration within 30 days from the date of issuance of the denial."

(5) 656.32(b)(1) (Revocation of approved labor certifications.) "The employer may submit evidence in rebuttal within 30 days of receipt of the notice."

(6) 656.41(a) (Certifying Officer review of prevailing wage determinations.) "The request for review must be sent to the sWA that issued the PWD within 30 days of the date of the PWD."

(7) 656.41(e) (Certifying Officer review of prevailing wage determinations.) "Any employer desiring review of a CO prevailing wage determination must make a request for review of the determination by the Board of Alien Labor Certification Appeals within 30 days of the date of the decision of the CO."

Note the variety of phrases and terminology used to describe essentially the same action: to send a response to DOL. In view of the ambiguity used, in the opinion of this writer, it would be prudent to send all responses so that they arrive within 30 days, i.e., send all responses on the 29th day.

The pre-PERM rule was specific as to penalties for late filings. Under the 45-day response-to-SWA rule, the application and priority date would be canceled, if it arrived after the 45th day. And under the 35-day response-to-notice-of-findings rule, all factual and legal findings in the NOF were deemed to be admitted as true, if not mailed by certified mail on the 35th day.

The PERM rule also contains penalties for late filings. The audit procedures provide for denial of the application and exhaustion of administrative remedies, and that administrative-judicial review by BALCA is not available. Under Supervised recruitment, if the response is untimely, the CO shall deny the application. Either Reconsideration or Request for review by BALCA must be made within 30 days as well. If not, the penalty is a finding that the Employer failed to exhaust administrative remedies. In revocation cases, the Employer must respond in timely manner, or the Intent to Revoke becomes the final decision of the Secretary; and if the response to the Intent to Revoke is filed in time and then denied on the merits, the Employer must appeal within 30 days, or the decision becomes final and the Employer is deemed to have failed to exhaust administrative remedies.

The only other guidance in the PERM Rule relates to counting timelines. The FAQ's describe timelines as the number of days prior to or after a required event. When determining the required 30 day timeline, the day of the event does not count. The 30th day begins on the next day, but the last day is included in the count. Thus, if a decision is issued on December 1st, the actual due date is December 31st.

Since the Regulations seem to cut off BALCA review for failure to file a timely response, it is unclear how the ambiguities in the PERM Rule will be resolved. In all fairness, DOL should permit responses to be sent on the 30th day, however, until this policy is formally adopted, all responses should be sent on the 29th day to arrive on the 30th day, using the counting method for timelines described above.