Judges' Benchbook
Second Edition - May 1992




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I. Regulatory requirements for FD

II. Elements of FD

III. Circumstances where FD inappropriate

I. Regulatory requirements for FD

Where a CO determines that labor certification must be denied following review of an employer's rebuttal, § 656.25(g)(2) requires the issuance of an FD which:

  1. contains the date of the determination;

  2. states the reasons for the determination;

  3. quotes the request for review procedures;

  4. advises that if a request for review is not made within the specified time, the denial will become the final determination of the Secretary.

II. Elements of FD

An FD must identify the § or subsection of the regulations violated and the nature of the violation. It must rely solely on issues raised and evidence discussed in an NOF. It must also state the reasons for rejecting the employer's rebuttal evidence and arguments. In some cases, a technical error may not invalidate an FD.

A. Section or subsection violated

The FD must identify which section or subsection of the regulations the employer violated. Flemah, Inc. , 88-INA-62 (Feb. 21, 1989) ( en banc ).

B. Nature of violation

The FD must state with specificity how the employer violated a section or subsection of the regulations. Flemah, Inc. , 88-INA-62 (Feb. 21, 1989) ( en banc ).

C. Issue must have been raised in NOF

A CO cannot raise an issue for the first time in the FD. Marathon Hosiery Co., Inc. , 88-INA-420 (May 4, 1989) ( en banc ); Dr. & Mrs. Fredric Witkin , 87-INA-532 (Feb. 28, 1989) ( en banc ); Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991); Santa Barbara Immigration Center , 90-INA-307 (Oct. 31, 1991); Immuno Biological Laboratories , 90-INA-22 (July 9, 1991); Garland Community Hospital , 89-INA-217 (June 20, 1991); Prime Clinical Systems, Inc. , 88-INA-530 (Feb. 9, 1990); Jose Eber , 88-INA-100 (Oct. 3, 1989); Maksam Investments, Inc. , 88-INA-122 (July 19, 1989); Teh Tung Shinn , 88-INA-16 (Feb. 16, 1989); Steamship (Houston), Inc. , 88-INA-73 (May 23, 1988).

1. Notice requirement

Raising an issue for the first time in the FD:

deprives the employer of the opportunity to rebut or cure,

Downey Orthopedic Medical Group , 87-INA-674 (Mar. 14, 1988) ( en banc ).

denies due process,

Counterpoint Development Co. , 89-INA-153 (Mar. 12, 1990); Tarmac Roadstone (USA), Inc. , 87-INA-701 (Jan. 4, 1989).

and violates § 656.25(c)(20).

Tarmac Roadstone (USA), Inc. , 87-INA-701 (Jan. 4, 1989).

2. Disposition of cases where new issue raised in FD

If the CO fails to base his denial on an issue or a ground raised in an NOF, the result on appeal may be:

the reversal of the denial of certification,

Counterpoint Development Co. , 89-INA-153 (Mar. 12, 1990) (FD was confusing and disingenuous, and failed to address issue raised in NOF).

or a remand to the CO for the clarification of the issue and the issuance of a new NOF.

Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991) (hap- hazard FD raised new issue and did not address issue raised in NOF).

Daniel and Margery Callahan , 90-INA-201 (Sept. 3, 1991) (where the CO challenged the existence of a bona fide job opportunity on one ground in his NOF, but ultimately found that no bona fide job opportunity existed on another ground, the panel remanded the case to allow the employer to rebut the second ground; the panel suggested that issuance of second NOF was appropriate course when CO changed rationale for finding no bona fide job opportunity).

Hudson Tool & Die Company , 88-INA-145 (Oct. 4, 1989) (employer attempted in good faith to comply with CO's instructions, CO failed to clarify requests for corrective action, and thrust of CO's reasoning first apparent in FD).

D. Evidence must have been discussed in NOF

The FD may not deny certification on the basis of evidence not cited in the NOF. Shaw's Crab House , 87-INA-714 (Sept. 30, 1988) ( en banc ); Marathon Hosiery Co., Inc ., 88-INA-420 (May 4, 1989) ( en banc ); Clarkston edical Group , 87-INA-718 (Oct. 18, 1988).

1. Notice requirement

If a CO obtains new evidence refuting an employer's rebuttal, he may not deny certification based on the new evidence without first issuing another NOF and giving the employer an opportunity to rebut. Shaw's Crab House , 87-INA-714 (Sept. 30, 1988) ( en banc ).

2. Disposition of cases where evidence first discussed in FD

If a CO bases his FD on evidence not first discussed in an NOF, the matter may be remanded to the CO for clarification and the issuance of a new NOF.

  • Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991) (remand where haphazard FD considered new evidence).

  • Serve Fashion, Inc. , 90-INA-27 (Dec. 7, 1990) (remand where FD cited evidence outside the appeal file).

  • Western Yarns, Inc. , 89-INA-60 (Feb. 23, 1990) (remand where confusing and conflicting grounds for denial).

E. Discussion of employer's timely rebuttal evidence and argument

The FD must discuss the employer's rebuttal evidence and argument. See supra Division II, E, 2. Of course, only that evidence which was timely submitted need be discussed. Fernando Jewelry Co. , 91-INA-6 (Apr. 30, 1991) (employer submitted one timely and one untimely portion of evidence during rebuttal, and CO improperly refused to consider the timely submission); see also Chapter 19, II, G (Rebuttal), regarding consequences of failing to file a timely rebuttal.

1. Disposition of cases where timely evidence and arguments not discussed in FD

If the FD does not address the employer's timely rebuttal evidence and arguments,

the challenge may be deemed to be successfully rebutted and not at issue before BALCA,

Barbara Harris , 88-INA-392 (Apr. 5, 1989);

the matter may be remanded,

Scientific Research Associates , 89-INA-32 (Feb. 9, 1990), Serve Fashion, Inc. , 90-INA-27 (Dec. 7, 1990) (FD discounted evidence in appeal file without explanation);

or the denial may be reversed.

Houston Graduate School of Theology , 90-INA-491 (Dec. 6, 1991) (CO ignored and mischaracterized employer's rebuttal concerning alien's qualifications).

Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991) (CO failed to address employer's rebuttal argument that privacy interests protected her disclosure of joint income tax returns, and failed to discuss employer's financial capacity to pay alien's salary).

See also CSU, Stanislaus , 90-INA-506 (Oct. 7, 1991); Garland Community Hospital , 88-INA-217 (June 20, 1991); Chico Arts , 89-INA-342 (May 15, 1991); Cinecom International Films , 90-INA-41 (Apr. 8, 1991); Jason's Restaurant , 88-INA-58 (July 12, 1988).

2. Merit of employer's rebuttal evidence and arguments may affect disposition

In cases where the FD does not discuss the employer's rebuttal evidence and arguments, the disposition of the case may be affected by the persuasiveness of the rebuttal. In cases where the employer's rebuttal is persuasive, a reversal may be warranted.

The denial of certification was reversed in the following cases:

  • Advanced Micro Devices, Inc. , 89-INA-306 (Dec. 12, 1990) (employer successfully rebutted NOF).

  • Duarte Gallery, Inc. , 88-INA-92 (Oct. 11, 1989) (detailed rebuttal established that requirement did not exceed Dictionary of Occupational Titles and was normally required for job).

  • Soloman Adam Dahni , 88-INA-391 (July 3, 1989) (rebuttal supplied prima facie response to issues raised in the NOF).

  • Quincy School Community Council , 88-INA-81 (Feb. 21, 1989) ( en banc ) (detailed rebuttal established business necessity).

  • Allied Towing Service , 88-INA-46 (Jan. 9, 1989) (employer provided rationale for rejecting each U.S. applicant).

F. Harmless error in format of FD

A technical error may not invalidate an FD, if the employer has not been harmed by the error. For instance, where a CO erroneously issued an NOF rather than an FD, he was permitted to correct the error in the absence of any prejudice to the employer. JLM Industries, Inc. , 88-INA-80 (Sept. 30, 1988).

III. Circumstances where FD inappropriate

Under some circumstances, a CO should not issue an FD after reviewing an employer's rebuttal. If the employer offers to cure a defect and readvertise, the CO should allow it to do so. And, if the employer reasonably misinterprets and responds to the NOF, the CO should clarify his grounds in a second NOF and give the employer another opportunity to rebut.

A. Rebuttal contains offer to cure defect and readvertise

Issuing an FD denying certification may be inappropriate if the employer's rebuttal contains an offer to cure a defect and readvertise. For instance:

  • Where the employer lists inconsistent requirements on the application, job notice, advertisement and other documents, but its rebuttal indicates a willingness to clarify and amend the requirements, the CO should address the employer's offer. Mash International Trading Co., Inc. , 90-INA-170 (June 5, 1991) (on remand, employer directed to amend application and CO directed to consider amended application).

  • Where the employer's rebuttal establishes that the questioned job requirements arise from business necessity, and agrees to make the changes recommended by the CO, the CO should permit the employer to make the changes and readvertise instead of denying certification. Dr. Jitendra Bharucha , 89-INA-25 (Feb. 9, 1990). See also Mr. & Mrs. Herbert G. Peabody , 90-INA-230 (Apr. 30, 1991).

1. Offer to cure may be conditional

Since an employer cannot predict whether its rebuttal evidence will be persuasive, its offer to cure a defect

may be conditioned on a finding that its rebuttal evidence is not persuasive. A. Smile, Inc. , 89-INA-1 (Mar. 6, 1990).

  • If an employer attempts to justify a requirement deemed "unduly restrictive" by the CO, and also expresses a willingness to delete the restriction and readvertise, and if the CO is not persuaded by the justification, then the CO must offer the employer the opportunity to readvertise. A. Smile, Inc. , 89-INA-1 (Mar. 6, 1990).

2. CO should grant extension of time to complete readvertisement

If an employer offers to readvertise if the CO is not persuaded by its rebuttal arguments, the CO should grant the employer's request for an extension of time to file rebuttal, so that the employer may readvertise. Magnesium Alloy Products Co. , 90-INA-174 (Mar. 27, 1991).

See Chapter 19, III (Rebuttal), regarding CO's discretion in granting requests for extension of time.

3. CO should allow readvertisement if employer's request for waiver denied

If, on rebuttal, an employer asks the CO to waive the advertising requirement, but does not refuse to readvertise, the CO should allow employer to readvertise after denying the request for waiver. Clara Luz Weise , 90-INA-247 (June 24, 1991). See also John & Winnie Ng , 90-INA-134 (Apr. 30, 1991)

B. Employer reasonably misinterprets NOF

A case was remanded where the CO "technically" gave the employer notice of the basis for his denial in the NOF but such notice was in "a catch-all statement" which "masked" the CO's objection. Motorola Communications & Electronics, Inc. , 91-INA-278 (Feb. 23, 1993).

A case was remanded where the employer's "failure to fully rebut the CO's Notice of Findings may have been due, in part, to the CO's lack of specificity . . .." Gobi Primak, Inc. , 92-INA-161 (Mar. 11, 1993).

See Chapter 17, II, D (Notice of Findings), regarding the issuance of a second NOF if the employer reasonably misinterprets the first NOF.

C. Employer misinterpretation under other circumstances

The panel remanded a case where the employer misinterpreted a local job service's recommended change in its job requirements which resulted in the job being advertised without a necessary requirement. Advanced Machinery & Engineering Co. , 91-INA-221 (Feb. 1, 1993).

D. CO failed to receive documentation

The panel remanded a case where the CO "was not aware of the Employer's amendment to the (ETA-750) application . . . when the NOF was issued . . . as no reference was made to the Employer's amendment" because the employer mailed it to an incorrect address. Montessori Academy , 92-INA-66 (Feb. 17, 1993).

The denial of labor certification was reversed where the CO erroneously concluded that the employer did not provide certified mail receipts demonstrating its contact of U.S. workers. As noted in the employer s motion for reconsideration before the CO, copies of the receipts were submitted along with its recruitment report to the state job service which should have, in turn, been forwarded to the CO. The panel concluded that the CO abused her discretion in denying the motion and not using the opportunity to correct her erroneous belief that the receipts were not provided with the report of recruitment from the state job service. The panel concluded that, with the receipts evidencing contact of the applicants, labor certification should have been granted. Injectron Corp. , 92-INA-359 (July 12, 1993).

E. CO provides erroneous analysis

A case was remanded where the CO improperly limited the employer's rebuttal to require that it document that its "position presently constitutes an offer of permanent, full-time employment (emphasis in original)" and failed to advise the employer that, in accordance with H.R. Enterprises, Inc. , 89-INA-279 (June 25, 1990), the employer could also submit evidence of a definite plan for expansion. Star City Video , 92-INA-67 (Mar. 8, 1993).

A case was remanded where the CO erroneously concluded that the employer failed to filed a recruitment report. The CO also asserted that the employer failed to contact U.S. workers, yet the employer "furnished certified mail receipts about which the CO made no comment." The employer, on the other hand, failed to advertise the job with a referral to the state employment service. The panel noted that the confusing posture of the case supported a remand "so that the CO and the Employers may determine what their actual respective positions are . . .." Hasmukh R. & Ranjan H. Parekh , 92-INA-53 (Mar. 24, 1993).

Labor certification was granted where the record supported a finding that the employer documented its recruitment effort for the job offered where [t]he CO s objections in both Notices of Findings appear to be based on the mistaken assumption that the employer had conducted only one recruitment effort. The CO acknowledged this error in the FD but stated that the advertisement did not conform to the usual circulation given city vacancy announcements. The panel noted that this assertion was not supported by the record and that the employer was not given any opportunity to rebut the allegation. City of Los Angeles, Dept. of Public Works, 91-INA-336 (Aug. 4, 1993).

F. Employer fails to receive documentation

A denial of labor certification was vacated and the case remanded where a U.S. was rejected without an interview because his resume did not list hand sanding experience, but a cover letter from the applicant, which the employer denied receiving, did list such experience. The CO challenged the employer's rejection based upon the applicant's resume but likewise did not mention the cover letter. The panel noted that the applicant's resume did not list any qualifying experience, but the cover letter did. Thus, it concluded that, as neither the employer nor the CO received the applicant's cover letter, the case was remanded to permit readvertisement of the position. Best Developing Co. , 92-INA-276 (Apr. 28, 1993).

Denial of certification based on failure to document rejection of one U.S. applicant out of 22 inappropriate where employer claims never to have received resume of that U.S. applicant and: (1) there was another applicant with the same last name; (2) employer s rebuttal statements were consistent with it being unaware of second applicant with identical last name; (3) state employment agency sent transmittal noting only 21 refs ; and, (4) employer included all other U.S. applicants in its recruitment report. The panel concluded that it was unlikely that employer purposefully withheld its report on the applicant in question. Moreover, because there was no evidence that the U.S. applicant at issue was qualified for the position, and the employer exhibited a good-faith recruitment effort otherwise, certification was deemed appropriate. William B. Tabler Architects, 93-INA-52 (Dec. 16, 1993).

G. Employer not served with decision

A panel granted employer's motion to reopen and reconsider where employer persuasively contended that neither it nor its counsel was served with copies of the panel's decision and order vacating the CO's Final Determination and remanding the case to allow employer 60 days to comply with the CO's Notice of Findings. Because employer and counsel were not served with that decision and order they did not comply with that decision and order and the CO issued another Final Determination denying certification. The panel again remanded the case to allow employer another 60 days to comply with the NOF. International Paper , 91-INA-333 (Mar. 17, 1994).

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