Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 17 -- SUPPLEMENT

Supplement current through January 1997

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 [new]

I. Regulatory requirements for NOF

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 Employer an opportunity to rebut or cure the alleged defects. See Downey Orthopedic Medical Group , 87-INA-674 (Mar. 16, 1988) (en banc). The CO stated in the second NOF that Employer had violated 20 C.F.R. § 656.50 by failing to establish that the position of tutor was full-time. The CO reasoned in the NOF that tutors are not normally employed on a full-time basis in aprivate household and that it was questionable whether Employer's household can support a full-time tutor. The CO then stated that 2 specific pieces of information about Employer were needed. The CO's statement was ambiguous to the extent that it mislead Employer into believing that answers only to those questions were necessary and not more. Miaofu Cao , 94-INA-53 (Mar. 14, 1996) (en banc).

If a certifying officer does not grant certifification, a NOF must be issued which must specify what Employer must show to rebut or cure the CO's findings. See Potomac Foods, Inc. , 93-INA-309 (July 26, 1994). The CO denied certification, noting that Employer should have supplied a doctor's statement as to the prognosis of the Alien's health and a "prospectus" to show the Alien's intent to sell his business. Nowhere in the NOF did the CO request this documentation and Employer had provided other documentation requested by the CO in the NOF. Remanded. Germania Club, Inc. , 94-INA-391 (May 25, 1995).

A. Elements of adequate notice

1. Section or subsection violated

Case law has established that to provide adequate notice, the CO need only identify the section or subsection allegedly violated and the nature of the violation. See Flemah, Inc. , 88-INA-62 (Feb. 21, 1989) (en banc). The CO stated in the second NOF that Employer had violated 20 C.F.R. § 656.50 by failing to establish that the position of tutor was full-time. The CO reasoned in the NOF that tutors are not normally employed on a full-time basis in aprivate household and that it was questionable whether the Employer's household can support a full-time tutor. The CO then stated that 2 specific pieces of information about Employer were needed. The CO's statement was ambiguous to the extent that it mislead Employer into believing that answers only to those questions were necessary and not more. Miaofu Cao , 94-INA-53 (Mar. 14, 1996) (en banc).

a. Summary of section or subsection not sufficient

no new cases

2. Nature of violation

a. Boilerplate explanation not sufficient

no new cases

3. Evidence supporting challenge

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

no new cases

4. Explanation of how to rebut or cure

Labor certification denial remanded where basis for denial was the failure of Employer to document U.S. worker's poor references. Where the NOFs were confusing and inadequate because the first NOF challenged rejection of workers but contained no instructions regarding rebuttal, and the second did not discuss the issue, case remanded to CO with instructions to allow Employer the opportunity to submit documentation supporting its rejection of U.S. workers. Copper Range Co. , 94-INA-316 (Jun. 27, 1995). See also Copley Place Travel Bureau , 95-INA-65 (Nov. 5, 1996) (remanding a case where the CO instructed Employer to provide "convincing documentation" that its requirement for fluency in 2 foreign languages arises from business necessity but failed to provide specific requests for documentation or outline any areas of inquiry that needed to be addressed).

B. Inadequate notice of deficiencies may result in remand

A case was remanded where "the Employer's rebuttal is clearly inadequate, due at least in part to the imprecise language in the CO's Notices of Findings." China Gardens , 91-INA-192 (June 29, 1992). Seealso U.S. Sprint , 91-INA-269 (Oct. 5, 1992); Babtech Enterprise Co. , 91-INA-228 (Oct. 5, 1992).

A case was remanded where the CO issued a confusing NOF which included citation of an erroneous standard for establishing business necessity and where Employer asserted that the CO came to the opposite result in a different case which was factually the same. Sage Brown & Assoc. , 91-INA-318 (Dec. 7, 1992). See also Copley Place Travel Bureau , 95-INA-65 (Nov. 5, 1996) (remanding a case where the CO failed to inform Employer in the NOF that defects could be cured by removing the restrictive requirement and re-advertising); ManAsia, Inc. , 94-INA-538 (Apr. 4, 1996); Olympia Convalescent Hospital , 95-INA-55 (Dec. 27, 1996) (denying certification where, instead of rebutting the NOF, Employer argued and the CO admitted that the CO provided no corrective action to be taken, because Employer made no reasonale efforts to seek clarification).

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

Case remanded for reissuance of the NOF because the CO, in the NOF, requested that Employer provide independent data to support assertions that requirement was a business necessity but the CO did not give specific examples of the documentation needed; nor did the CO clarify what was needed following repeated requests by Employer for clarification. Potomac Foods, Inc. , 93- INA-309 (Jul. 26, 1994). See also Copper Range Company , 94-INA-316(June 27, 1995); Olympia Convalescent Hospital , 95-INA-55 (Dec. 27, 1996) (denying certification where, instead of rebutting the NOF, Employer argued and the CO admitted that the CO provided no corrective action to be taken, because Employer made no reasonale efforts to seek clarification).

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

no new cases

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

The panel agreed that the CO misstated the Board's interpretation of the business necessity test. However, because: (1) the CO provided ample opportunity for Employer to submit specific documentation on rebuttal; (2) the CO noted the correct regulatory provision and noted that Employer must rebut by documenting business necessity; and (3) Employer has not suggested that any other documentation would have been provided otherwise, any such error is harmless. Cherokee Town & Country Club, Inc. , 92-INA-148 (Dec. 8, 1993).

In the NOF and the FD the CO incorrectly cited to § 656.24(b)(2)(ii) rather than § 656.21(g). Citing Liaison Center of the General Chamber of Commerce of the Republic of China , 90-INA-140 (Apr. 29, 1991), the Board held that this error was harmless. Here, it was clear from Employer's rebuttal that it understood the grounds for denial in the NOF. Hence, there was adequate notice of the deficiencies in Employer's application for labor certification. Family Liquors & Grocery , 95-INA-125 (Dec. 23, 1996).