UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
Second Edition - May 1992
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TABLE OF CONTENTS
I. Requirement that employer rebut all NOF findings
Admission based on failure to address
Inadequate rebuttal resulting from
inadequate notice of deficiency
Thirty-five day rule generally;
specification of due date
Calculation of time period
Opportunity to respond to finding of
Credibility of evidence of timely
Mailing of rebuttal material to
Failure to provide notice of change
Consequences of failure to file
Authority of Board to review
denial based on late rebuttal
Manifest injustice standard,
Relationship between abuse of
discretion standard,and manifest injustice standard
- 1. Regulatory provision
Authority of CO to grant extension
when good cause is show
Abuse of discretion standard
Failure to request extension or
give notice of need for additional time
Determination of status of
extension request; informal grant of extension
I. Requirement that employer rebut all NOF findings
A. Admission based on failure to address NOF finding
Section 656.25(e) provides that the employer's rebuttal evidence must rebut all of the findings in the NOF and that all findings not rebutted shall be deemed admitted. On this basis, the Board has repeatedly held that a CO's finding which is not addressed in the rebuttal is deemed admitted. Belha Corp. , 88-INA-24 (May 5, 1989) ( en banc ); Salvation Army , 90-INA-434 (Dec. 17, 1991); Michael's Foods, Inc. , 90-INA-411 (Nov. 14, 1991); Oliver & Becica, AIA , 90-INA-274 (Oct. 30, 1991); D.C. National Cab Co., Inc. , 89-INA-294 (May 22, 1991); Felix Shepeluk , 90-INA-294 (Mar. 5, 1991); Judith Eisenberg , 88-INA-234 (Feb. 19, 1991); Schwinn Bicycle Co. , 90-INA-39 (Nov. 5, 1990); M. Sky Construction Co. , 89-INA-340 (Oct. 29, 1990); Faten Zaky , 89-INA-353 (Aug. 24, 1990); Cook County Hospital , 89-INA-64 (Mar. 6, 1990); Kamali Oriental Rugs , 89-INA-151 (Feb. 21, 1990); International Construction Consortium Inc ., 88-INA-496 (Jan. 4, 1990); Our Lady of Guadalupe School , 88-INA-313 (June 2, 1989); Lewis University , 88-INA-75 (June 20, 1988). See also 20 C.F.R. § 656.26(a)(4).
The following cases provide examples of responses of employers that were found to be admissions or generally inadequate under § 656.25(c)(3). Thus, denial of certification was affirmed where the employer:
addressed only part of the deficiency asserted in the NOF,
Tarna of California
, 88-INA-478 (June 6, 1989)
(where the CO proposed to deny certification based on the
unlawful rejection of three appli-cants and the employer's
rebuttal addressed the rejection of only one applicant, the
CO's allegations concerning the other two were deemed
only made generalized assertions,
Winner Team Construction, Inc.
(Feb. 1, 1990) (where employer's rebuttal merely averred
that its application was made without attempt to circumvent
the law, and that it had experienced difficulty in its
attempt to fill the job, the deficiencies cited in the NOF
were deemed admitted).
merely complained about the cost of recruitment,
Leyva Architectural Staff and Stone
(Mar. 18, 1991) (in response to alleged recruitment
referred to documents not in evidence,
Leyva Architectural Staff and Stone
(Mar. 18, 1991) (employer referred to a non-existent letter
concerning the prevailing wage issue).
made unsupported assertions,
Sun Valley Co.
, 90-INA-391 and 90-INA-393 (Jan.
6, 1992) (employer challenged CO's prevailing overtime wage
determination; the record did not support the employer's
contention that no overtime would be worked).
Sun Valley Co.
, 90-INA-394 (Jan. 6, 1992)
(failure to document experience requirement for other
employees hired by the employer).
or failed to produce any new evidence.
Sun Valley Co.
, 90-INA-391 and 90-INA-393 (Jan.
6, 1992) (employer offered no evidence challeng-ing the CO's
prevailing overtime wage determination).
- Ted Tokio Tanaka Architect , 88-INA-334 (June 27, 1989) (rebuttal that does no more than cite to clearly inadequate data already in the record is, in effect, no rebuttal at all).
C. Inadequate rebuttal resulting from inadequate notice of deficiency
An employer's inadequate rebuttal may be excused where it was not provided with sufficient notice of the alleged defect, such as where the NOF was ambiguous, see Chapter 17, II (Notice of Findings), or where the CO introduced new evidence, or new argument for the first time in the FD, see Chapter 12, C, 2 adn 12, D, 2 (Final Determination).
See also supra Division II, G, 3, d in regard to an untimely rebuttal resulting from inadequate notice of the alleged deficiencies.
A. Thirty-five day rule generally; specification of due date
The regulations at 20 C.F.R. § 656.25(c)(3) require that the CO specify a date thirty-five calendar days after the issuance of the NOF by which an employer must mail its rebuttal evidence.
The NOF must specifically and explicitly set forth the deadline for receipt of rebuttal evidence. Failure to do so by the CO is grounds for remand for consideration of "untimely" rebuttal. J. Michael & Patricia Solar , 88-INA-56 (Apr. 6, 1989) ( en banc ).
The Board has applied § 18.4 of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 to calculate the time period for filing a timely rebuttal. Thus, where the CO improperly failed to consider rebuttal evidence which was due on a Saturday, but filed on the following Monday, the case was remanded for consideration of the evidence. The panel held that 29 C.F.R. § 18.4(a), which states that the next business day is included in a time period which expires on a Saturday, Sunday, or federal holiday, is applicable to the computation of time for submitting rebuttal in labor certification proceedings. Famous Brothers Jewelers , 90-INA-34 (July 18, 1991).
Compare Delmar Family Dental Center , 88-INA-132 (Sept. 26, 1988) ( en banc ), discussed in Chapter 24, II, B (Request for Administrative-Judicial Review), holding that 29 C.F.R. § 18.4(c)(3) does not extend the deadline for filing requests for review to forty days after the date of the Final Determination because the labor certification regulation specified thirty-five calendar days.
C. Opportunity to respond to finding of untimely rebuttal
Where the FD is based on untimely rebuttal, the employer obviously has had no prior opportunity to submit evidence to support a contention that it filed a timely rebuttal, and it is an abuse of discretion for the CO not to reconsider. See Chapter 22, VI, B, 2 (Reconsideration by CO).
D. Credibility of evidence of timely rebuttal
Section 656.25(c) directs the CO to advise the employer in the NOF that rebuttal evidence or argument must be mailed to the CO, by certified mail, before a specified date thirty-five calendar days from issuance of the NOF. The requirement for submitting documentation by certified mail is not a mere technicality, but rather an important provision designed to prevent disputes over whether a rebuttal was timely mailed. Park Woodworking, Inc. , 90-INA-93 (Jan. 29, 1992) ( en banc ).
In Engineering Measurement Co. , 90-INA-171 (Mar. 29, 1991), a panel found that an employer's affidavit that rebuttal was mailed timely was credited, and case was remanded to allow readvertisement. The decision in this case, however, appears to have been based on a liberal interpretation of the manifest injustice standard, and may be disapproved under Park Woodworking, Inc. , 90-INA-93 (Jan. 29, 1992) ( en banc ) ( see supra Division II, G, 3, b).
An employer may rely on its own written assertion and a signed and date-stamped certified mail receipt to establish that the CO received a complete copy of its rebuttal. Facets Trading Corp. , 88-INA-357 (June 27, 1989).
E. Mailing of rebuttal material to state agency
Rebuttal is untimely if it is sent to the state job service rather than to the CO. Torres Discount Radiator , 88-INA-324 (Feb. 7, 1990).
It has been held in one case, however, that even though the employer sent recruitment data to the state agency, rebuttal was timely because the employer had also sent a timely letter outlining its recruitment efforts to the CO. Caleb Brett U.S.A., Inc. , 87-INA-596 (June 27, 1988).
Similarly, in a case where the employer mistakenly sent rebuttal to the state job service within the rebuttal period, but attempted to rectify the mistake promptly, and the possibility existed that the CO would have accepted the rebuttal had the rebuttal evidence been attached to the employer's request for reconsideration, and the CO failed to rule on the motion for reconsideration, the Board remanded to the case to the CO for reconsideration on the merits. Cynthia Kincaid , 88-INA-320 (June 14, 1989).
F. Failure to provide notice of change of address
The employer has the burden to inform the CO or the state job service of a change of address in timely fashion. In one case a denial of labor certification on the ground of untimely rebuttal was affirmed where both the employer and the alien changed addresses and had not received a copy of the NOF. Robert Longo , 88-INA-378 (July 20, 1989).
G. Consequences of failure to file timely rebuttal
The regulations specify that an employer's failure to file a rebuttal in a timely manner:
converts the NOF into an FD denying
constitutes a refusal to exhaust all
administrative remedies, and
- bars access to Board review.
20 C.F.R. § 656.25(c)(3)(i)-(iii).
Labor certification was properly denied where the employer filed rebuttal after the 35-day deadline with no excuses or justification offered. Euroden , 92-INA-246 (June 2, 1993). See also Metro Software, Inc., 93-INA-478 (Mar. 31, 1994).
2. Authority of Board to review denial based on late rebuttal
In Madeleine S. Bloom , 88-INA-152 (Oct. 13, 1989) ( en banc ), recon . den . (Dec. 20, 1989) (per curiam), the Board held that the requirement of filing a rebuttal within thirty-five days was neither jurisdictional nor unwaivable, and does not preclude it from considering a request for review in appropriate circumstances. In other words, the Board held that it possesses the authority to review denials based on late rebuttals despite the regulation explicitly prohibiting such review. This holding rests on a distinction between unwaivable statutory or jurisdictional time limits and the procedural rules of courts and administrative agencies which may be waived in appropriate instances.
3. Manifest injustice standard, generally
In Madeleine S. Bloom , 88-INA-152 (Oct. 13, 1989) ( en banc ), recon . den . (Dec. 20, 1989) (per curiam), the Board held that the failure to file a timely rebuttal may be excused where the facts require extraordinary relief to avoid manifest injustice. In Bloom the NOF raised a single issue -whether the alien had a driver's license as required by the job offer. The employer promptly gave her attorney evidence establishing that the alien had a valid driver's license; however, because of attorney absconded, abandoning his law practice without the employer's knowledge, this evidence was not filed with the CO. Noting that had this evidence been timely filed labor certification would have been granted, the Board determined that the ends of justice would not be served by mechanical adherence to filing requirements. Simply put, the Board concluded that an employer should not be made to suffer the consequences of her attorney's negligence. The Board emphasized, however, that regulatory deadlines would only be tolled in those rare instances in which failure to do so would result in manifest injustice.
b. Strict construction of Bloom
The Board held in Park Woodworking, Inc. , 90-INA-93 (Jan. 29, 1992) ( en banc ), that Bloom is to be construed strictly in order to assure clarity and consistency in the application of the rebuttal requirements of § 656.25.
The employer in Park Woodworking alleged that it timely submitted rebuttal, but could not prove a timely mailing as its attorney did not have a certified mail receipt. A panel of the Board held that the untimely rebuttal could be excused under Bloom because the employer had evidently made a timely re-recruitment which if considered as rebuttal evidence would probably result in the granting of labor certification, and because the rebuttal was untimely because of the employer's agent's failure to conform the submission to regulatory criteria rather than the employer's own lack of diligence.
The Board reversed the panel, holding that the distinguishing concerns evident in Bloom were not present in Park Woodworking . Specifically, the Board noted
the absence of any specially egregious factor (such as
the deceptive, defaulting attorney in
the unanswered credibility question concerning whether
the entire rebuttal was submitted as alleged (the NOF
directed that all original documents should be returned with
the rebuttal, but the originals were attached to a
reconsi-deration request), and
- the lack of certainty that certification would have been granted but for the lack of timeliness (the evaluation of employer's rebuttal evidence would have required substantially more than the essentially ministerial function anticipated in Bloom ).
The Board stated in Park Woodworking that to the extent that prior panel decisions may have liberally construed the application of Bloom , the Park Woodworking interpretation of Bloom controls. The Board did not name any specific panel decisions.
i. Post Park Woodworking decisions
In each of the cases regarding untimely rebuttal decided after the strict construction of Bloom announced in Park Woodworking ( see supra Division II, G, 3, b), the Board has found that the facts did not present one of the rare instances requiring extraordinary relief from the regulatory deadline to avoid manifest injustice. In all of the following cases it was noted that the CO had raised a substantive violation of the regulations rather than merely requested the provision of a particular document that would perfect the application as in Bloom .
Harry and Kim Kaczor
, 90-INA-288 (Mar. 31,
1992) (oversight by the employer's counsel in calendaring
the rebuttal deadline and the failure of the employer or
employer's counsel to request a further extension (one
having already been granted) because of an alleged delay in
obtaining tear sheets to document readvertisement).
, 90-INA-390 (Mar. 31, 1992)
(filing of a request for an extension to readvertise with a
higher prevailing wage followed by a failure to take further
Rayonier C & C Ltd.
, 90-INA-339 (Mar. 20,
1992) (rebuttal documentation submitted one day late,
counsel admitted error but asked that his client not be
Empire Pump & Motor Corp.
, 90-INA-588 (Mar.
20, 1992) (employer assertedly made inadequate attempts to
file a timely rebuttal; fact that it did so without
assistance of counsel was of no consequence since the
employer is responsible for submitting a timely rebuttal
with or without assistance of counsel; employer did not
provide certified mail receipts to establish timely
- Equitable Insurance Co. , 91-INA-32 (Mar. 20, 1992) (mailing of rebuttal to the state agency rather than the CO; NOF clearly stated that the rebuttal was to be submitted to the CO and not the state agency). To the same effect: Gibson, Dunn & Crutcher , 91-INA-279 (Mar. 20, 1992).
See also Park Woodworking, Inc. , 90-INA-93 (Jan. 29, 1992) ( en banc ), discussed in detail at Division II, G, 3, b of this Chapter.
ii. Pre Park Woodworking decisions
One panel distinguished Madeleine S. Bloom , 88-INA-152 (Oct. 13, 1989) ( en banc ), recon . den . (Dec. 20, 1989) (per curiam), in dismissing a request for review where the employer was granted four extensions of time, but still filed a late rebuttal. The panel held that the unfamiliarity of employer's attorney's secretary with the firm's postage meter or mailing procedures was not a "rare instance in which failing to toll the regulatory deadline would result in manifest injustice." Thomas Beard , 89-INA-191 (Mar. 28, 1990); compare Engineering Measurement Co. , 90-INA-171 (Mar. 29, 1991) (manifest injustice held to apply where the rebuttal submission was returned due to insufficient postage; query whether this holding is disapproved under Park Woodworking ).
In Spie Tool Co. , 89-INA-50 (May 20, 1990), a panel held that Bloom could be distinguished where the employer requested and received two extensions of time in which to file its rebuttal, and employer failed to file its rebuttal until two months after the final extension date. The panel found that failure to toll the regulatory deadline would not result in manifest injustice. The panel found no merit in excuses offered by employer's counsel, holding that termination of employer's previous counsel's law practice did not excuse the late filed rebuttal as employer's vice president was presumably informed by the CO of both extensions of time.
In Neptune Research & Development, Inc. , 89-INA-75 (Feb. 1, 1990), waiver of the rebuttal deadline was not appropriate under the manifest injustice test based where an extension of time to file a rebuttal was not requested because counsel was newly retained.
d. Untimely rebuttal resulting from inadequate notice of deficiency
In the following cases an untimely rebuttal was excused based, at least in part, on an inadequate notice to the employer of the deficiency. It is unclear whether these cases would be disapproved under Park Woodworking, Inc. , 90-INA-93 (Jan. 29, 1992) ( en banc ); however, they arguably have vitality because of the inadequate notice factor.
In Buena Vista Landscape , 90-INA-392 (July 9, 1991) ( en banc ) (per curiam), the Board excused the employer's failure to rebut a supplementary NOF. The Board did not accept the Solicitor's argument that the Madeleine S. Bloom , 88-INA-152 (Oct. 13, 1989) ( en banc ), recon . den . (Dec. 20, 1989) (per curiam), standard should not apply because the employer failed to submit any rebuttal (in Bloom rebuttal was submitted, albeit untimely). Factors considered included the employer's timely rebuttal to the first NOF, the obscurity of the supplemental NOF, the de minimis nature of the alleged violation, the high probability that certification would have been granted had the overtime rate been properly calculated, the employer's good faith efforts in recruitment by offering a wage above the prevailing wage, and the fact that there were no U.S. applicants for the job despite the wage offer made above the prevailing wage.
In Alfred Paquette , 89-INA-350 (Feb. 8, 1991), the panel found that the regulatory deadline for filing rebuttal should be tolled where the employer's attorney, through no fault of his own, did not receive the NOF until after the FD, and the CO had acknowledged in the NOF that there was no defect in the application or recruitment but had requested an administrative adjustment to the wage offer (that was probably not required under the regulations in any case). The late arrival of the NOF was possibly caused by the postal service's repeated confusion over the attorney's mailing address.
Compare Valle Verde Retirement Homes , 89-INA-356 (Feb. 8, 1991) (despite confusion over address of new attorney, the record did not support her claim that she did not receive the NOF until after the expiration of the rebuttal period).
See also Gary Cooper/Roy Berman Construction , 90-INA-312 (Oct. 25, 1991) (where it appeared that the employer did not timely receive a copy of the response to its motion to reopen and allow the submission of additional evidence (and where that response allowed the employer to submit further documentation), the employer's failure to submit rebuttal was not a basis for denial of the application).
See also the cross references supra Division I, C relating to inadequate rebuttal resulting from inadequate notice of the deficiency. See also II, E of this Chapter regarding the employer's failure of informing the CO of an address change of address.
4. Relationship between abuse of discretion standard and manifest injustice standard
The CO moved for reconsideration of Madeleine S. Bloom , 88-INA-152 (Oct. 13, 1989) ( en banc ), recon . den . (Dec. 20, 1989) (per curiam), asking that the Board clarify what it perceived to be an inconsistency between the "abuse of discretion" standard and the "manifest injustice" standard.
Prior to Bloom , the Board had consistently used an "abuse of discretion" standard in reviewing a CO's denial of labor certification based on an employer's failure to file a timely rebuttal to the NOF. See , e.g. , Polytex Fibers Corp. , 87-INA-597 (Feb. 7, 1989) ( en banc ) (CO did not abuse his discretion by failing to grant a second extension of time to file a rebuttal to the NOF which was received only the day before the extended rebuttal deadline); Augusta Bakery , 88-INA-297 (Jan. 12, 1989) ( en banc ), aff'd August Bakery v. Elizabeth Dole , No. 89 C 686 Civil (E.D. Ill. May 7, 1990).
In an Order denying reconsideration, the Board found that the two standards are not inconsistent, but instead are related. It stated that a CO's refusal to waive or extend a nonjurisdictional regulatory deadline generally will not constitute an abuse of discretion, but that when it is apparent that the CO's refusal to waive or extend a nonjurisdictional regulatory deadline will result in manifest injustice, a determination that the CO has abused his or her discretion is appropriate. Madeleine S. Bloom , 88-INA-152 (Dec. 20, 1989) (per curiam order denying reconsideration).
In Augusta Bakery v. Elizabeth Dole , No. 89 C 686 Civil (E.D. Ill. May 7, 1990), aff'g Augusta Bakery , 88-INA-297 (Jan. 12, 1989) ( en banc ), the district court approved the Board's denial of the CO's motion for reconsideration of Madeleine S. Bloom , 88-INA-152 (Oct. 13, 1989) ( en banc ). The CO had argued that Bloom was inconsistent with Augusta Bakery . The court agreed that the facts of Bloom and Augusta Bakery were distinguishable, noting that the employer's excuse for not filing rebuttal in Augusta Bakery were "meager and totally unexplained."
A. Authority of CO to grant extension when good cause is shown
Section 656.25(c)(3) provides that the employer may within thirty-five calendar days from the date of the NOF submit documentary evidence to cure the defects found to exist. This regulation, however, does not make the NOF automatically final where certification is not accomplished within the allotted time. Technical Assistance Guide No. 656 provides that upon good cause shown, a CO may grant an extension of time. Requests for extensions should be submitted in writing prior to the expiration of the thirtyfive days. Barbara Friedman , 89-INA-220 (Dec. 5, 1990).
B. Abuse of discretion standard
1. CO may not ignore facts and explanations
While the grant of an extension of time for filing a document is within the CO's discretion, it is an abuse of discretion to deny an extension without regard to the facts and explanations of the parties. Barbara Friedman , 89-INA-220 (Dec. 5, 1990). In Friedman , the employer's agent had submitted a written request for an extension to file rebuttal because a document concerning the alien's experience had been lost. Subsequently obtained documentation (from a different source) clearly established the alien's qualifications for the job. The panel held that under the particular facts of that case, it was an abuse of discretion to deny the extension without explanation.
Where an employer makes a timely rebuttal, but notifies the CO that it cannot complete corrective actions required by the NOF within the thirty-five day rebuttal period, it is an abuse of discretion to require completion of the corrective action within the thirty-five day period. Professionals Associated Construction Layout & Survey Co., Inc. , 90-INA-581 (Oct. 25, 1991); Alabama Reweaving Co. , 88-INA-294 (June 2, 1989). For example, it is an abuse of discretion to deny an extension of time to complete rebuttal
where additional recruitment efforts can not be completed
within the thirty-five day rebuttal period,
Chapter 19, IV, H (Recruitment
where additional time is needed to complete a wage survey in
a prevailing wage dispute,
Chapter 18, IV, E (Prevailing Wage).
where necessary documentation must be obtained from a distant
William and Daneen Miller
, 89-INA-30 (June 12,
1990) (where the employer filed a partial rebuttal to the
NOF, and requested an extension of time to file further
rebuttal evidence, which was being obtained from Trinidad,
the Board held that the CO's failure to grant the extension
of time was unreasonable).
and where the employer offers to conform to the NOF if the CO
is not persuaded by its rebuttal argument.
- See Chapter 12, III, A (Final Determination); Chapeter 18, IV, F.
C. Failure to request extension or give notice of need for additional time
Generally, the Board will affirm a CO's refusal to consider an employer's untimely rebuttal to the NOF where the employer failed to request an extension of time (or otherwise notify the CO that complying with the NOF would take longer than thirty-five days) or where the CO properly denied an extension request. Augusta Bakery , 88-INA-297 (Jan. 12, 1989) ( en banc ), aff'd Augusta Bakery v. Elizabeth Dole , No. 89 C 686 Civil (E.D. Ill. May 7, 1990); Commercial Graphics, Inc. , 90-INA-114 (July 15, 1991) (no extenuating circumstances, CO refused to grant extension); Blarney Stone Bar & Restaurant , 90-INA-67 (Mar. 27, 1991); Pilch, Inc. , 89-INA-252, 89-INA-253 and 89-INA-254 (Mar. 27, 1991); Sam Telegadis , 89-INA-305 (Feb. 8, 1991); Western Waterproofing Co., Inc. , 88-INA-514 (Oct. 5, 1989); Ninfas's Inc. , 88-INA-473 (July 17, 1989).
Where the employer merely makes a bold assertion in its rebuttal letter that additional documentation would be submitted at some future time, and such evidence does not relate to corrective action required by the NOF that could not possibly be completed prior to the expiration of the rebuttal period, the assertion is not equivalent to requesting an extension of time to file complete rebuttal. Neptune Research & Development, Inc. , 89-INA-75 (Feb. 1, 1990); see also Charleedane Industries , 88-INA-69 (Apr. 9, 1990).
D. Determination of status of extension request; informal grant of extension
When the due date for rebuttal comes, it is the employer's burden to inquire as to the status of an outstanding request extension. Mr. & Mrs. Walter Morgan , 88-INA-446 (Feb. 22, 1990). The CO, however, cannot lead the employer to believe that he or she is amenable to leaving the case open for completion of re-recruitment and then deny certification when the employer inquires into the status of the case. Barrister's Associates, Inc. , 89-INA-117 (Feb. 12, 1990).
- In Barrister's Associates , the employer had made a timely rebuttal and notified the CO that completion of readvertising would be completed several months later because of the time involved in advertising in a monthly publication. The panel stated that although an employer cannot set its own timetable, where the CO did not impose a deadline, it was an abuse of discretion to issue a FD one week after the date on which the employer had inquired as to the status of the case on the ground that the employer had failed to complete its rebuttal within a reasonable amount of time. The panel indicated that the employer was entitled to be informed of a definite date by which its entire rebuttal was due.
Similarly, where the CO may have informally granted an extension of time to file a rebuttal and the employer was relying on that informal extension in good faith, the case may be remanded for a determination of whether such an extension had been granted. Modgraph, Inc. , 88-INA-287 (Dec. 29, 1988) ( en banc ).