UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992


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CHAPTER 17

NOTICE OF FINDINGS

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TABLE OF CONTENTS

I. Regulatory requirements for NOF

II. Adequate notice of deficiencies

III. Harmless error in NOF; employer had notice of basis for denial

I. Regulatory requirements for NOF

Pursuant to § 656.25(c), if a CO does not grant certification, an NOF must be issued which states:

  1. the date on which the NOF was issued;

  2. the specific grounds for issuing the NOF; and

  3. the date by which a rebuttal must be made.

The Board held that "[d]enying labor certification in the Final Determination on grounds not first raised in the warning Notice of Findings violates section 656.25 and denies due process." North Shore Health Plan , 90-INA-60 (June 30, 1992)( en banc ).

II. Adequate notice of deficiencies

The NOF must give notice which is adequate to provide the employer an opportunity to rebut or cure the alleged defects. Downey Orthopedic Medical Group , 87-INA-674 (Mar. 16, 1988) ( en banc ).

A. Elements of adequate notice

An adequate notice of deficiencies should identify the section or subsection allegedly violated, the nature of the violation, the evidence supporting the challenge, and instructions for rebutting or curing the violation.

1. Section or subsection violated

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

a. Summary of section or subsection not sufficient

Stating the section or subsection violated is a necessary, but not sufficient, element of the NOF. Merely summarizing the regulations in the NOF is not sufficient notice of alleged deficiencies. University of Utah , 87-INA-702 (May 9, 1988) (language of job notice not clearly challenged).

2. Nature of violation

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

a. Boilerplate explanation not sufficient

The NOF should not be mere boilerplate. The Board observed in Sizzler Restaurants International , 88-INA-123 (Jan. 9, 1989) ( en banc ), that boilerplate NOFs "often lead to inadequate notice of the alleged violations, due to their lack of specificity and failure to address the facts of the application being considered. In addition, such form notices are often confusing, precluding effective rebuttal."

When a boilerplate NOF causes or contributes to an employer's confusion:

the matter may be remanded to the CO for clarification,

Mere boilerplate in the NOF may result in a remand to the CO. Sue Chiang , 89-INA-77 (May 25, 1990).

or certification may be granted.

In Belle Mayer , 89-INA-332 (Sept. 5, 1990), the CO, using a largely boilerplate NOF, included a cursory\ reference to readvertising "showing the daily hourly wage." Except for the lack of proper readvertisement (the ad incorrectly listed only the higher overtime wage), all other deficiencies were considered resolved in the FD. Because of the confusing boilerplate in the NOF, the employer's failure to respond completely to the advertisement issue was excused. See also The Kroenke Group , 90-INA-318 (July 12, 1991).

3. Evidence supporting challenge

An employer must be advised of the evidence being used against it so that it has an opportunity to rebut that evidence. Shaw's Crab House , 87-INA-714 (Sept. 30, 1988) ( en banc ).

a. Ambiguity caused by CO's failure to list all evidence supporting challenge

An NOF which challenges the employer's compliance with a regulation, lists specific evidence supporting the challenge, but does not list all of the evidence which might support the challenge, may mislead an employer to focus its rebuttal on only the listed evidence. Since such an NOF does not give the employer adequate notice of the alleged defect, the matter may be remanded for a new NOF. Patisserie Suisse, Inc. , 90-INA-131 (Oct. 16, 1991); Orient Express Fast Food, Inc. , 89-INA-270 (Aug. 27, 1990), discussed in Chapter 30, II, B (Sufficiency of Funds to Pay Salary).

  • In Patisserie Suisse, Inc. , 90-INA-131 (Oct. 16, 1991), the CO cited only one ground for his challenge to the existence of an employer/employee relationship between the employer and the alien, although the record contained other evidence which might have supported the challenge, and the panel remanded the case to the CO to issue a new NOF and allow the employer to submit rebuttal evidence.

  • Compare Altobeli's Fine Italian Cuisine , 90-INA-130 (Oct. 16, 1991) (certification granted where CO's ground for finding that job was not clearly open was meritless, and record did not contain any other evidence to sustain finding).

4. Explanation of how to rebut or cure

The NOF must specify what the employer must show to rebut or cure the CO's findings; otherwise the employer is deprived of a full opportunity to rebut. Peter Hsieh , 88-INA-540 (Nov. 30, 1989) (NOF did not state how to rebut).

  • Where the NOF did not offer the employer the option of readvertising without the allegedly restrictive requirement as the employer offered in request for review the case was remanded to the CO. Sue Chiang , 89-INA-77 (May 25, 1990).

See also John & Winnie Ng , 90-INA-134 (Apr. 30, 1991); Jonlek Co. , 89-INA-369 (Jan. 25, 1991); Chapter 12, II (Final Determination).

B. Inadequate notice of deficiencies may result in remand

If an unclear or ambiguous NOF causes or contributes to an employer's confusion, the matter may be remanded to the CO for clarification and to give the employer an opportunity to rebut. See , e.g. , Patisserie Suisse, Inc. , 90-INA-131 (Oct. 16, 1991); Poultry Classics , 91-INA-68 (June 21, 1991); Toys "R" Us , 89-INA-345 (Dec. 10, 1990); Sue Chiang , 89-INA-77 (May 25, 1990); American Candy Manufacturing Corp. , 88-INA-274 (Oct. 27, 1989); Hudson Tool & Die Company , 88-INA-415 (Oct. 4, 1989); Dr. Joseph Maghen , 88-INA-335 (Aug. 8, 1989).

But see North Shore Health Plan , 90-INA-60 (Apr. 8, 1991) (en banc review pending), in Chapter 11 (Evidence), which indicates that, instead of remanding, a panel may consider evidence submitted with the employer's request for review if the CO did not give timely notice of an alleged defect.

C. Employer's efforts to comply with or seek clarification of defective NOF

The disposition of a case may be influenced by whether the employer made reasonable efforts to comply with, or seek clarification of, a defective NOF. For example, cases may be remanded where:

  • the employer reasonably interprets and complies with the NOF. American Candy Manufacturing Corp. , 88-INA-274 (Oct. 27, 1989).

  • the NOF is ambiguous, the employer requests clarification, the CO does not adequately explain the challenge, and the employer makes a reasonable effort to comply. Toys "R" Us , 89-INA-345 (Dec. 10, 1990).

  • the employer attempts in good faith to comply with the CO's instructions, the CO fails to clarify her requests for corrective action and the CO's reasoning first becomes apparent in the FD. Hudson Tool & Die Company , 88-INA-415 (Oct. 4, 1989).

See also Wynfield House , 90-INA-193 (June 28, 1991); Vivian Gumbiner , 90-INA-310 (June 28, 1991); Eska, Inc. , 89-INA-173 (May 25, 1990).

D. CO should issue second NOF if employer reasonably misinterprets first NOF

If an employer reasonably misinterprets the first NOF, and addresses the wrong issue, then the CO should issue another NOF rather than denying certification. For example, if the NOF is unclear, and does not identify the specific section of the regulations upon which the proposed denial of certification is based, and the employer's rebuttal mistakenly addresses the wrong issue, then the CO should issue another NOF rather than denying certification. Mrs. Nancy Johnstone , 87-INA-541 (May 31, 1989) ( en banc ).

III. Harmless error in NOF; employer had notice of basis for denial

If the NOF provides sufficient notice of the proposed basis for denial, despite the CO's failure to comply with the requirements discussed supra Division II, B, the challenge may be considered to be properly made.

  • In Liaison Center of the General Chamber of Com- merce of the Republic of China , 90-INA-140 (Apr. 29, 1991), the CO cited § 656.24(b)(2)(ii) instead of § 656.21(b)(7), but the NOF clearly placed the employer on notice of the basis for the denial.

An employer's treatment of an issue in its rebuttal may be one indication that the NOF provided adequate notice.

  • In Anderson-Mraz Design , 90-INA-142 (May 30, 1991), the NOF did not specifically cite § 656.21(b)(6), but the employer was on notice of the alleged violation and addressed the issue on rebuttal.

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