In Denzil Gunnels, 2010-PER-628 (Nov. 16, 2010), slip op. at 11, BALCA rejected the contention that OFLC’s December 1, 2009 FAQ on best practices for titling a request for reconsideration or request for BALCA review is binding on employers. The panel noted that a FAQ is not a method by which an agency can impose substantive rules that have the force of law. Gunnels, supra at 12-14.
When a motion for reconsideration is filed the CO has the discretion to either reconsider the denial determination or treat the employer’s request as a request for review by the Board of Alien Labor Certification Appeals. 20 C.F.R. § 656.24(g)(4). By forwarding an Appeal File to the Board without ruling on the Employer’s request, the CO exercised that discretion sub silentio.
See 20 C.F.R. §§ 656.26(a)(4)(i) a request for review, statements, briefs, and other submissions of the parties must contain only legal argument and only such evidence that was within the record upon which the denial of labor certification was based) and 656.27(c) (The Board must review a denial . . . on the basis of the record upon which the decision was made, the request for review, and any position statements or legal briefs of the parties).
In Denzil Gunnels d/b/a/ Gunnels Arabians, 2010-PER-628 (Nov. 16, 2010), BALCA held that an employer’s right to procedural due process is violated when the CO construes an ambiguous “request for review” as a request for direct BALCA review and immediately forwards the case to the Board with the consequent effect of denying an employer its sole opportunity to supplement the record on appeal.
An employer is permitted to request reconsideration of a denied certification, but such request may include only:
(i) Documentation that the Department actually received from the employer in response to a request from the Certifying Officer to the employer; or
(ii) Documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of § 656.10(f).
20 C.F.R. §§ 656.24(g)(2)(i), (ii). This regulation provides that the CO will consider additional documentation submitted with an employer’s request for reconsideration only if the employer did not have the opportunity to submit it previously and if it was maintained to support the application for labor certification. See Denzil Gunnels d/b/a/ Gunnels Arabians, 2010-PER-628 (Nov. 16, 2010).
New evidence may only be introduced in a motion to reconsider to the Certifying Officer and not in a motion for review by the Board.
Section 656.24(g)(1) entitled “Labor Certification Determinations states, “The Employer may request reconsideration within 30 days from the date of issuance of the denial.” In Section 656.24(g)(2) the request for reconsideration may only include “documentation that the employer did not have an opportunity to present previously to the Certifying Officer, but that existed at the time the Application for Permanent Labor Certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements…”