Citations for ILW.COM's Seminar
PERM for Experts
Session 2 held on February 10
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The following Citation is from Discussion Leader Sophia Zneimer:
The following citations are from Speaker Roger Tsai
BALCA appeal process:
I. Final Determination denies the labor certification 20 CFR 656.24(e)
A. Within 30 days of the determination, the employer may file a request for review AND/OR
B. Within 30 days of the determination, the employer may file for a Request for Reconsideration 20 CFR 656.24(g)(1)
II. Request for Reconsideration – As of Sept. 2009, there were 3,000 cases in queue (working on cases filed Aug. 2007)
A. For applications submitted after July 16, 200, a request for reconsideration may only include
1. Documentation that the DOL received from the employer in response to an audit
2. Documentation that the employer did not have an opportunity to present, but existed at the time the Permanent Labor Cert was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the Labor Cert process. 20 CFR 656.24(g)(2)
B. This is identical to the Request for Review except CO considers rather than ALJ
C. The DOL National Processing Center will designate any appeals into the Request for Reconsideration unless specifically stated otherwise.
D. Request needs to be done within 30 days from the issuance of the denial (any mail delay)?
E. May correct missing or incorrect information on the ETA 9089 if that was the result of a typographical error or oversight, and that correction is supported by documentation that existed at the time the time the Labor Cert was filed (tear sheets or other advertisements, prevailing wage determination). When you have an inappropriate publication. Business days should they include federal holidays? What is a business day?
F. Where the employer ignored
1. The documentation will only be accepted if the employer did not have an opportunity to present the documentation previously.
G. If the CO upholds its prior denial, the appeal is automatically forwarded to BALCA for review
H. Request for reconsideration is available if the employer failed to timely respond to audit request, but not available where the denial was based on the applicant disregard of a system prompt or other direct instruction (i.e. reconsideration not available where the employer filed the ETA 9089 beyond 180 days after recruitment began or running the job order for only 15 days)* newer issue after 2007 amendments
I. Seems like the best option for questions of fact: such as if the employer timely responded to the audit.
III. Request for Review 20 CFR 656.26 with BALCA – Board of Alien Labor Certification Appeals (currently have 5 ALJ judges as of Oct. 2010). Number of PERM appeals in FY 2008 – 253; FY 2009 488; FY 2010 1656 appeals. Volume has more than tripled. Average time from docket to disposition is 120 days for FY 2010. The order the cases are processed is based on the docket date (request for appeal) rather than the labor cert filing date.
A. If an employer wants to skip the Request for Reconsideration, it must specifically include the terms “request for review”. If employer has already made a Request for Reconsideration, cannot change mind later. May inquire into status of the appeal by email@example.com. No additional documents on Request for Review under 20 CFR 656.27(c).
B. Must be sent to the CO who denied the application
C. Must set forth the particular grounds for the request
D. The CO will send the Appeal File to a DOL ALJ (the employer will receive a copy of the appeal file to the employer – this serves as notice to the employer that the CO upheld the decision, and the case has been forwarded to BALCA for review) Is there really the power to remand? There really isn’t. SJ Chae Holding inc. BALCA 2009 135 (first part of deskbook)
E. Request for Review is not available if employer failed to timely respond to audit request
G. Request for Review is better for analysis of law or regulation (i.e. whether the employer has met it’s burden of demonstrating a business necessity)
H. Once the case is forwarded from the CO, BALCA sends notice to the employer requiring submission of a statement of intent to proceed within 15 days, and setting a period of 45 days to submit an appellate brief. The employer may choose not to send an appellate brief if already adequately briefed on the Motion to Reconsider.
IV. The BALCA ALJ panel may 20 CFR 656.27(c)
A. Affirm the denial of the labor certification
B. Direct the CO to grant the labor certification
C. Direct that a hearing on the case be held
V. What evidence can an employer provide and can BALCA consider on a motion for reconsideration as opposed to a request for review?
A. New evidence seems to be permitted within a motion for reconsideration, only if the employer did not have an opportunity to present the documentation previously.
B. No new evidence permitted on a request for review (Find cite- the one provided by DOL does not exist)
Withdrawal or resubmission after withdrawal may be an option after denial:
1. Employer may not have multiple applications for the same position for the same employee (even if one of the applications is on reconsideration or appeal)
a. If the recruitment is not stale, this may be the best option (fix a typo)
b. Can withdraw even if it is on reconsideration or appeal
c. Shouldn’t do this if the alien needs to maintain priority date, and nearing the 6th year of H-1B status
3. Resubmit application
a. Shouldn’t do this if the alien needs to maintain priority date, and nearing the 6th year of H-1B status
b. Can be done once you withdraw. You cannot appeal and also refile with the same employer.
The following Citations are from Speaker Kimberly Best:
DOL may choose to audit a particular case 20 CFR §656.17(b)(1) & (2)
Submit an inquiry with the Help Desk at PLC.Help@dol.gov
Increase in Audits & Debarment Activity
Unofficial Notes from Office of Foreign Labor Certification (OFLC) Stakeholder Teleconference February 10, 2011
The Foreign Labor Certification Report: 2009 data, Trends and Highlights Across Programs and States
Minutes from DOL Stakeholders Meeting October 28, 2010 in Washington, D.C.
Processing Times www.icert.doleta.gov
Deadlines for Audit Responses 20 CFR §656.20; extension request may be sent to firstname.lastname@example.org
Application cannot be withdrawn once an audit letter is issued PERM FAQ set, round 4 (June 1, 2005)
PERM audit file must be retained for 5 years 20 CFR §656.10(f)
Debarment 20 CFR §656.26(a)(1), (c); 656.31
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