Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 26 - SUPPLEMENT

Supplement current through January 1997

SCOPE OF BOARD AUTHORITY, JURISDICTION AND REVIEW

Return to Main Text .
TABLE OF CONTENTS

I. Authority

II. Jurisdiction

III. Record to be reviewed

IV. Stare decisis

I. Authority

A. Regulatory provision

no new cases

B. Exercise of authority; remands

1. In general

Panel remanded case where the CO only found one unlawfully rejected U.S. worker even though there were two aliens and two advertised job openings. On remand, the panel instructed the CO to review the evidence in light of the multiple openings, the appearance that one alien may have an ownership interest with employer and apparently was involved in the recruitment process, and in light of the recent en banc decision in Vito Volpe, et al. , 91-INA-300 (Sept. 29, 1994) (considered the suitability of application for landscape/gardener for certification under the permanent labor certification regulations). Garibay aintenance , 92-INA-399, 400 (Oct. 27, 1994).

Case remanded to the CO where the CO did not clearly address Employer's response or argument that the job was improperly classified, except in a memo to the file after issuance of the Final Determination, in order to allow Employer to amend or reduce the experience requirement and advertise the position. Jose Dasilva Ferreira , 93-INA-212 (Oct. 31, 1994).

Case remanded to the CO for review of a document verifying the applicant's experience where it appeared from the record that said document may have been submitted but was not included in the appeal file. Roberto B. Alvir , 93-INA-234 (Nov. 22, 1994).

In rebuttal to the CO's request in the NOF that Employer submit documentation of his business, Employer explained that he owned his own business named F.B.J.S. Enterprises located at "Suite 265 Merrick Rd., Merrick, New York." He explained that the business's function was to provide maintenance services to residences and businesses. In addition, the Employer explained, the business required long and irregular hours. The CO issued a FD denying certification for the position of "Housekeeper, Live-in" after calling directory assistance in Merrick, which said that F.B.J.S. Enterprises did not exist in Merrick, and after a call the post office in Merrick revealing that box 265 (suite 265 in Employer's rebuttal) was not listed as a business. Employer appealed, including in its request for review a copy of its business incorporation papers, and a copy of the business stationary for billing including the address for business purposes only, which was "2055 Merrick Road, Suite 265, errick..."(in reality the address of an answering service since "his business did not allow much time for these tasks."). The Board noted that "although we would not ordinarily use the arguments proposed by Employer on appeal, here..." the evidence in the request for review helps explain an alleged error by the CO (confounding a suite number with a Post Office Box), why F.B.J.S. Enterprises could not be contacted and whether or not the business actually existed. Compare this case with Capriccio's Restaurant, 90-INA-480 (Jan. 7, 1992) (declining to consider evidence first submitted with the request for review). Frank Basilicata , 95-INA-283 (Feb. 6, 1997).

2. Appropriateness of remand versus reversal

Where the CO's sole basis for denying certification is an unsubstantiated allegation of fraud on the part of the employer, then the FD must be vacated and certification granted. International Software Designs , 94-INA-376 (June 5, 1995). The Board refused to remand a case where Employer requested that it be allowed to amend its application and re-advertise if its arguments were not accepted. The Board reasoned that, here, Employer did not agree to delete the unduly restrictive job requirement. See GPF Systems, Inc. , 94-INA-301 (June 30, 1995). Lee International Corp. , 94-INA-413 (Oct. 12, 1995).

Employer sought labor certification for the position of accountant. It required on the ETA 750A form for the position a bachelor's degree in business administration or accounting, 5 years experience in the position offered, a CPA certificate from any state or country and experience using Lotus 1-2-3 and a 10 key by touch. Employer rejected 2 applicants for the position because they had failed to demonstrate in a written test administered at the time they were interviewed that they had the knowledge to perform the duties of the position. Employer noted that the Alien had passed the same exam. The CO denied certification because Employer had rejected the 2 applicants for an unstated reason and because the "employer failed to document the date and prove that the Alien completed and passed the examination. The Board reversed on both of these grounds and granted certification. As for the first reason for denial the Board held that, under Hugh G. Brewster , 88-INA-390 (Dec. 6 1989), the imposition of a written test as part of the interview process was not an unduly restrictive job requirement even though it was not included in the ETA 750A form or the advertising for the position. As for the second ground, the Board cited Marathon Hosiery Co., Inc. , 88-INA-420 (May 4, 1989) (en banc) (reversing a denial of labor certification where the FD raised an issue not previously raised in the NOF), reasoning that the CO never informed Employer that it needed to document the date and prove that the Alien completed and passed the examination. Instead, the CO had merely requested that Employer provide the date when the Alien passed the examination. Pattern Knitting Mills, Inc. , 95-INA-109 (Dec. 2, 1996).

Where the CO denies alien labor certification for, inter alia , allegedly mistaking a suite number for a post office box, and where the CO believes that a fictitious address was uncovered, and where Employer caused this error by inadvertently omitting the numbers of the street address given, remand would be helpful to allow Employer to explain why it could not be contacted and whether or not a business necessity existed. Frank Basilicata , 95-INA-283 (Feb. 6, 1997).

Remand inappropriate after the CO raises new issues regarding Employer's maintenance business address and telephone number in the FD because a remand would not serve any useful purpose as Employer has "clearly established" that a live-in requirement is essential to perform the duties of the job in a reasonable manner. Frank Basilicata , 95-INA-283 (Feb. 6, 1997) (Huddleston, J. dissenting).

For the position of "vice president and General manager" a marketing and management consulting firm required an MBA and 10 years of experience. The CO classified this position under the DOT as a "Manager/Industrial Organization," which required no MBA but 4-10 years experience. The CO denied labor certification because the MBA was unduly restrictive. The Board granted labor certification without remand because the proper classification for the position was "vice president" and, although the SVP is the same for vice president as it is for "Manager/Industrial Organization," the Board found it appropriate to consult the Occupational Outlook Handbook ( OOH ) for general managers and top executives because the DOT did not specify what, if any, degrees are normal for the position. Based on the OOH, the Board found that "many managers in administrative, marketing, financial and manufacturing activities had a masters degree in business administration," and the fact that the position paid $120,000 ranked the position in the higher category of vice presidents. The Board cited no cases in deciding to reverse rather than remand although it noted that no other reason for denial was assigned in the CO's FD. Merchantmen International , 95-INA-106 (Sept. 25, 1996).

3. Consideration of changed circumstances on remand

no new cases

C. Discretion of agency to relax or modify procedural rules

1. Ends of justice

no new cases

2. Disfavor of denials on technical grounds

no new cases

3. New rule or clarification of law

no new cases

D. Limitation on Authority [NEW]

In an en banc decision the Board unanimously concluded that as a non-Article III court it has no inherent authority to overrule the validity of a regulation. oreover, BALCA, established by regulation to carry out the Department's objectives under section 212(a)(5) of the Immigration and Nationality Act, has no expressly delegated authority to rule on the validity of a regulation. Accordingly, even where the Board finds a regulatory provision in conflict with the governing statutory provision, it has no authority to overrule or disregard the regulation as written and intended by the Secretary of Labor. Dearborn Public Schools , 91-INA-222 (Dec. 7, 1993)(en banc).

II. Jurisdiction

Where the CO granted certification, but denied Employer's request for reconsideration of the processing date at the local job service level (the job service had canceled the original filing because it determined that some documents had not been timely filed), the Board determined that this was tantamount to a denial because the new filing date resulted in a five-year loss in the Alien's priority date. Kleinfeld Bridal Shop , 94-INA-31 (June 28, 1995) (en banc) (two members dissented from this holding).

A. Date of request for review

no new cases

B. Substitution cases

no new cases

III. Record to be reviewed

A. Regulatory provisions

no new cases

B. Evidence not in the record upon which denial was based

The Board dismisses cases where the request for review fails to set forth specific grounds for review and no brief is filed. See Bixby/Jalama Ranch , 88-INA-449 (Mar. 15, 1990); North American Printing Ink. Co. , 88-INA-42 (Mar. 31, 1988) (en banc). In the instant case the Board dismissed the request for review because it only stated that the CO's denial of an application for labor certification was "an abusive discretionary decision and not based on fact or legal precedent." The Board noted that since Employer filed no brief, that the above statement was tantamount to a failure to set forth specific grounds for review. Marine Fabrication , 95-INA-244 (June 7, 1995).

The Board dismisses cases where the request for review fails to set forth specific grounds for review and no brief is filed. See Bixby/Jalama Ranch , 88-INA-449 (Mar. 15, 1990); North American Printing Ink. Co. , 88-INA-42 (Mar. 31, 1988) (en banc). In the instant case the Board dismissed the request for review because it only stated that the CO's denial of an application for labor certification was "an abusive discretionary decision and based on the CO... calling the Employer a liar." The Board noted that since Employer filed no brief, that the above statement was tantamount to a failure to set forth specific grounds for review. Santa Ana Cutting Service , 95-INA-245 (June 7, 1995).

1. Evidence submitted with motion to reconsider

A panel declined to consider evidence submitted with a motion to reconsider before the CO where the CO, likewise, did not consider the evidence. Schroeder Brothers Co. , 91-INA-324 (Aug. 26, 1992).

The mere attachment of untimely submitted evidence along with the CO's denial of motion for reconsideration does not indicate that the CO considered such evidence as part of the record. Magic Windows, Inc. , 92-INA-250 (Feb. 3, 1994).

Evidence first submitted with the request for review and not in the record upon which the denial was based will not be considered by the Board. See University of Texas at San Antonio , 88-INA-71 (May. 9, 1988). Employer argued that because "extensive additional information and documentation has become available to the Employer," the CO should reconsider its motion. The new evidence consisted of a conversation between the state job service and a pathologist about the position of a research associate. The Board declined to remand to the CO with instructions to rule on the motion for reconsideration because Employer failed to state why the evidence was not presented sooner. Mount Sinai Medical Center , 94-INA-109 (June 27, 1995). See also Systemhouse, Inc. , 95-INA-57 (July 26, 1996) (declining to consider Employer's evidence concerning the rejection of an applicant for the position of senior systems analyst where Employer first submitted the evidence on a motion for reconsideration and where the CO refused to consider the new evidence); Roy Lipman Org., Inc. , 95-INA-71 (July 26, 1996).

The Board dismisses cases where Employer merely alleges a general statement of disagreement. A general statement of disagreement with the CO does not constitute an assignment of error. See GCG Corp. , 90-INA-498 (May 20, 1991). In the instant case the Board dismissed the request for review because it only stated that the CO's denial of Employer's application for labor certification was "an abusive discretionary decision and not based on fact or legal precedent." The Board noted that since the Employer filed no brief, that the above statement was tantamount to a failure to set forth specific grounds for review. Marine Fabrication , 95-INA-244 (June 7, 1995).

In its request for review, Employer stated that the CO's denial of its application for labor certification was "an abusive discretionary decision and not based on fact or legal precedent." The Board upheld the CO' s denial of labor certification, noting that, since the Employer filed no brief, the loan statement was tantamount to a failure to set forth specific grounds for review. See Mark Bondio Plastering, Inc. , 92-INA-260 (Dec. 17, 1992). Marine Fabrication , 95-INA-244 (June 7, 1995).

In its request for review, Employer stated that the CO's denial of its application for labor certification was "an abusive discretionary decision and based on the CO ... calling the Employer a liar." The Board upheld the CO' s denial of labor certification, noting that, since the Employer filed no brief, the loan statement was tantamount to a failure to set forth specific grounds for review. See Mark Bondio Plastering, Inc. , 92-INA-260 (Dec. 17, 1992). Santa Ana Cutting Service , 95-INA-245 (June 7, 1995).

The Board dismisses cases where the Employer merely alleges a general statement of disagreement. A general statement of disagreement with the CO does not constitute an assignment of error. See GCG Corp. , 90-INA-498 (May 20, 1991). In the instant case the Board dismissed the request for review because it only stated that the CO's denial of Employer's application for labor certification was "an abusive discretionary decision and based on the CO... calling the Employer a liar." The Board noted that since Employer filed no brief, that the loan statement was tantamount to a failure to set forth specific grounds for review. Santa Ana Cutting Service , 95-INA-245 (June 7, 1995).

Employer applied for certification for the position of mechanical engineer and required a Master's Degree in Mechanical Engineering plus 2 years of experience in the job offered. The CO denied certification on the basis that the Master's Degree was unduly restrictive. Employer filed a motion for reconsideration attached to which was a statement by a professor opining that applicants should have the Masters Degree for consideration. Employer had informed the CO in its rebuttal that the letter would be submitted "shortly," even though it did not submit it then. The CO denied the motion without considering the letter. On appeal, the Board declined to consider the letter submitted by the professor. Citing Schroeder Brothers Co. , 91-INA-324 (Aug. 26, 1992) (evidence not submitted with rebuttal cannot be considered where presented after issuance of FD and not considered by the CO in its motion for reconsideration); Cf. Construction & Investment Corp. , 88-INA-55 (Apr. 24, 1989) ( en banc ) (evidence submitted after FD and considered by the CO in its denial of Employer's motion for reconsideration is reviewable by the Board). The Board noted that Employer herein could have asked for an extension of time, but did not. Given this failure, and given the fact that the CO did not consider the statement, the Board held that considering the evidence would be improper. Sidhu Assoc., Inc. , 95-INA-182 (Jan. 2, 1997).

2. Evidence submitted with the request for review

Case remanded for further consideration where in its decision denying certification based on Employer's failure to document the need for a full-time household cook, the CO interpreted Employer's statement that he and his wife work from 9:00 to 6:30 to mean that cook would not be required to prepare lunch. In its request for review, Employer maintained that this constituted a misunderstanding of the facts by the CO and that Employer in fact returned home daily for lunch. The panel remanded the case to the CO in light of this possible misunderstanding. Arthur Walters , 94-INA-7 (Nov. 30, 1994).

Rebuttal evidence submitted after issuance of the Final Determination along with the request for review is not part of the record and cannot be considered on appeal pursuant to 20 C.F.R. 656.27(c). Memorial Granite , 94-INA-66 (Dec. 23, 1994).

The Board would not consider Employer's argument made in its request for review that the rejected applicant spoke a different Filipino dialect than the one required, where that issue was not raised prior to issuance of the Final Determination. Francisco Potestas , 94-INA-204 (Apr. 26, 1995).

An employer cannot supplement the record on appeal. ST Systems, Inc. , 92-INA-279 (Sept. 2, 1993); Ira S. & Roberta Silver , 91-INA-147 (July 22, 1993); Staffcon, Inc. , 92-INA-323 (July 19, 1993); City Video, Inc. , 92-INA-180 (July 19, 1993); Luna Restaurant , 91-INA-374 (June 30, 1993) (wage survey submitted on appeal); HGHB , 92-INA-267 (June 3, 1993); Robert F. Kennedy Day Care Center , 92-INA-293 (June 1, 1993); Oscar Basso , 92-INA-173 (May 28, 1993); Highland Plating Co. , 92-INA-264 (May 25, 1993); Eduardo Alvarez , 92-INA-2 (Apr. 27, 1993); Newcastle Fabrics Corp. , 92-INA-175 (Apr. 19, 1993); Victoria Mihich , 92-INA-200 (Apr. 12, 1993); Sequel Concepts, Inc. , 91-INA-329 (Mar. 12, 1993); Imad Itani Draperies , 91-INA-172 (Jan. 6, 1993); Newway Auto Sales & Parts , 91-INA-352 (Dec. 16, 1992); Dharmanidhi Social Services , 90-INA-467 (Aug. 4, 1992) (employer cannot offer to increase the wage on appeal); Kem Medical Products Corp ., 91-INA-196 (June 30, 1992); John Hancock Financial Services , 91-INA-131 (June 4, 1992); Hortensia Vargas , 91-INA-26 (Apr. 21, 1992); Morrison Express Corp. , 91-INA-77 (Apr. 30, 1992); Cal-Tech Construction Co. , 91-INA-118 (May 4, 1992); Linda Smith , 90-INA-468 (Apr. 30, 1992); Danbury Hilton Inn , 90-INA-281 (Apr. 17, 1992); Mark Austin , 91-INA-158 (Mar. 26, 1992); Campfino, Inc. , 90-INA-474 (Feb. 25, 1992); Kamashian Engineering , 90-INA-408 (Feb. 6, 1992); Jean Louis and Ester LeBreton , 90-INA-233 (Dec. 20, 1991).

Evidence submitted with request for review that belatedly addressed other deficiencies will not be considered by the Board, Capriccio's Restaurant , 90-INA-480 (Jan. 7. 1992). Integrated Business Solutions, Inc. , 94-INA-209 (June 22, 1995).

Where Employer failed to assert a basis for not having submitted the "subject documentation" as part of its rebuttal submitted in response to the NOF, then it shall not be considered on appeal because the Board will not consider documentation submitted by Employer in connection with the request for review. Here, the Board did not specify the type of evidence submitted in the request for review. Nonetheless, compare this case , Sharp Screen Supply, Inc. , 94-INA-214 (May 25, 1995) and Capriccio's Restaurant, 90-INA-480 (Jan. 7, 1992) (declining to consider evidence first submitted with the request for review), with Frank Basilicata , 95-INA-283 (Feb. 6, 1997) a recent case where the Board actually reviewed evidence first submitted with the request for review. Cristina Clark , 94-INA-508 (Oct. 31, 1996) .

26 3 B 2

Where Employer failed to document reposting of the job notice in its rebuttal before the CO, the Board cannot receive and consider documentation of such reposting on appeal. Robert Farm , 94-INA-559 (Jul. 28, 1995). See also Lori Gusky , 94-INA-518 (Aug. 1, 1996); Jerry's , 94-INA-517 (Aug. 1, 1996); Tacc International Corp. , 95-INA-72 (Oct. 31, 1996); Coticha Cheese Co. , 95-INA-27 (Mar. 14, 1996) (declining to entertain "undeliverable" envelopes submitted from the post office intended to show that the applicant never signed the return slips because they were first submitted with the request for review).

In the NOF, the CO required Employer to explain a discrepancy between the employer's applicant's allegations concerning whether or not the applicant had been interviewed. Employer did not submit any rebuttal addressing the discrepancy and the CO denied certification. In its appeal to the Board, Employer submitted a letter addressing this discrepancy. The Board reasoned that it was an appellate body which could only base its decision on the record on which the CO reached her decision, and, therefore, "evidence first submitted with the request for review" could not be considered because the record may not be supplemented on appeal. See Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992); University of Texas at San Antonio , 88-INA-71 (May 9, 1988); ST Systems, Inc. , 92-INA-279(Sept. 2, 1993); Dharmanidh; Social Services , 90-INA-467(Aug. 4, 1992). Rafa's Roofing, 95-INA-287 (Dec. 19, 1996).

Where seeking review of the CO's FD denying labor certification for the position of quality control manager, Employer submits documentation of posting notice of the position at its place of business and additional evidence concerning the business necessity of two (2) requirements, the evidence cannot be considered because Employer failed to explain why it had not submitted the documentation with its rebuttal. Sharp Screen Supply, Inc. , 94-INA-214, (May 24, 1995).

Employer applied for certification for the position of Italian specialty cook. The CO issued a NOF, noting that two (2) applicants informed the CO that, had Employer contacted them in a timely manner, they may have been interested in the position. In addition, the first applicant stated that Employer told her that she was overqualified for the position. In rebuttal Employer informed the CO that, although he had started trying to contact the first applicant on February 16, the applicant had been unavailable until February 23. Employer also contended that it was unable to contact the second applicant until March 2. The CO denied certification and the Board affirmed. Citing Loma Linda Foods, Inc. , 89-INA-289 (Nov. 26, 1991) ( en banc ), the Board noted that employers may avoid the implications of untimely contact where they provide a reasonable justification for the delay, a reasonable excuse is one that shows that it did not contribute to the delay, or a combination of reasonable excuses or delay. In the instant case, the Board reasoned that, although Employer justified the delay on the grounds that he was ill and understaffed and that he was unaware that he had to contact the applicants within a certain amount of time, Employer had failed to include these arguments in his rebuttal, and first presented them in its request for review. See Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992) (declining to consider evidence first submitted with the request for review). Pizzeria and Restaurant Randazzo , 95-INA-152 (Dec. 27, 1996).

Employer applied for certification for the position of machine technician/machine operator. After the CO denied certification, Employer submitted a motion for reconsideration. Included in its motion was evidence not previously submitted. Citing Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992) (that evidence first submitted with a request for review may not be considered by the Board), the Board declined to consider the new evidence and affirmed the CO's denial of certification. Ridge Precision Products , 95-INA-149 (Nov. 22, 1996).

Evidence first submitted with the request for review will not be considered by the Board. See Capriccio's Restaurant , 90-INA-191 (May 20, 1991). In its request for review, Employer offered to re-advertise its position and the Board refused to consider Employer's offer. Columbus Hospital , 95-INA-282 (Apr. 16, 1996).

Employer applied for certification for the position of electronic technician, the job duties included the detection of problems and the repair of microwave ovens. The CO issued a NOF proposing to deny certification on the grounds that Employer unlawfully rejected four (4) U.S. applicants. In rebuttal, Employer stated that the four (4) applicants possessed no experience in the repair of microwave ovens. The CO denied certification and Employer appealed, providing new explanations for rejecting the U.S. applicants. The Board affirmed the CO's denial. Citing Capriccio's Restaurant , 90-INA-480 (Jan. 7, 1992), The Fifteenth Street Garage , 90-INA-52 (Nov. 21, 1990) and Physician's Inc ., 87-INA-716 (July 12, 1988), the Board reasoned that evidence first submitted with the request for review would not be considered by the Board. Active Electronics, Inc. , 95-INA-160 (Dec. 23, 1996).

Evidence first submitted with the request for review cannot be considered by the Board. See Memorial Granite , 94-INA-66 (Dec. 23, 1994). Shamp Plumbing and Building , 94-INA-530 (Feb 23, 1996). See also Universal Medical System, Inc ., 94-INA-458 (Feb. 23, 1996); Holiday Restaurant and Club , 94-INA-390 (June 16, 1995).

The Board does not base its opinions on evidence which was not a part of the record on which the denial of labor certification was made. See ST Systems, Inc. , 92-INA-279 (Sept. 2, 1993). Employer supplemented its rebuttal taking issue with the CO's wage determination for the position of quality control inspector by stating that its personnel records show low turnover and "there are people daily requesting position in our small company." The Board refused to consider this evidence. Micron Instruments , 94-INA-482 (Feb. 23, 1996).

In rebuttal to a NOF requesting that Employer submit documentation of his business, Employer explained that he owned his own business named F.B.J.S. Enterprises located at "Suite 265 Merrick Rd., Merrick Rd., Merrick, New York." He explained that the business's function was to provide maintenance services to residences and businesses. In addition, Employer explained, the business required long and irregular hours. The CO issued a FD denying certification for the position of "Housekeeper, Live-in" after the CO contacted Employer's agent who said that the business' name was the combined initials of Employer and his wife, and after calling directory assistance in Merrick which said that F.B.J.S. Enterprises did not exist in Merrick, and after calling the post office in Merrick which said that box 265 (suite 265 in Employer's rebuttal) was not listed as a business. Employer appealed and included in its request for review a copy of its business incorporation papers, and a copy of the business stationary for billing which included the address for business purposes only, which was "2055 Merrick Road, Suite 265, Merrick..."(in reality the address of an answering service since "his business did not allow much time for these tasks."). The Board reviewed the evidence submitted for the first time in the request for review. The Board noted that "although we would not ordinarily use the arguments proposed by Employer on appeal, here..." the evidence in the request for review helps explain an alleged error by the CO (confounding a suite number with a Post Office Box), why F.B.J.S. Enterprises could not be contacted and whether or not the business actually existed. Compare this case with Capriccio's Restaurant, 90-INA-480 (Jan. 7, 1992) (Board declined to consider evidence first submitted with the request for review). Frank Basilicata , 95-INA-283 (Feb. 6, 1997).

Employer submitted documentation to the Board with its request for review. The Board declined to consider the documentation because its review is based on "the record upon which the denial of labor certification was made, the request for review and any statements of position and legal briefs." Testwell Craig Labs of N.J., Inc. , 94-INA-512 (Dec. 2, 1996).

Employer sought labor certification for the position of "systems analyst" and required knowledge of a specific computer language. The Employer's counsel stated in a cover letter to the rebuttal that he was enclosing copies of advertisements by other employers for systems analysts which required that the successful applicants have "knowledge of specific computer language [sic]." However, the evidence was not filed with the rebuttal but with the brief on appeal. The CO denied certification and the Board affirmed. The Board reasoned that the evidence could not be considered because evidence first submitted with the request for review will not be considered by the Board. See Sharp Screen Supply, Inc. , 94-INA-214 (May 25, 1995); See also Capriccio's Restaurant, 90-INA-480 (Jan. 7, 1992) (the Board declined to consider evidence first submitted with the request for review); Cf. Frank Basilicata , 95-INA-283 (Feb. 6, 1997). Wings Manufacturing Corp., 95-INA-98 n.1 (Jan. 27, 1997).

3. Evidence submitted with the brief on appeal or a motion to remand

The Board can only review the record that was before the CO and cannot consider new evidence. See Gnaw Auto Sales & Parts , 91-INA-352 (Dec. 16, 1992). The Board refused to consider a letter submitted by Employer on appeal tendered to prove that the Alien had experience as a tutor rather than a child tutor. Employer had applied for certification for the position of tutor but the Board found that the Alien only had experience as a child tutor. Richard & Teresa Hoover , 94-INA-380 (July 28, 1995).

C. Constraining of issues based on employer's actions

1. Legal arguments not raised before the CO

The employer cannot challenge the application of a Davis-Bacon wage rate for the first time on appeal. Denihan Co. , 90-INA-432 (Feb. 11, 1992).

For the position of cook Employer required either 2 years experience in the job offered or 2 years experience in the position of domestic (with cooking experience). The Alien stated that she worked for Employer as a cook for around 2 years and 3 months. Before that, the Alien had worked for Employer as a housekeeper. The Board granted certification, reasoning that the CO should have but did not require Employer to explain why she was not treating U.S. workers as favorably as she treated the Alien. The CO waived the issue. See International Student Exchange of Iowa, Inc. , 89-INA-261 (Apr. 21, 1992).

2. Issue withdrawn in request for review

no new cases

3. Admission based on failure to address NOF finding

An offer to cure a deficiency noted in the NOF after issuance of the FD is untimely and the CO's denial of labor certification will be upheld. Dharmanidhi Social Services , 90-INA-467 (Aug. 4, 1992); Nancy Vera , 93-INA-63 (Dec. 16, 1993) ( citing Dharmanidhi Social Services ); Mrs. Beverly Abdo , 90-INA-578 (May 14, 1992); Mr. & Mrs. Galo Mardirossian , 91-INA-41 (Mar. 13, 1992).

D. Constraining of issues based on CO's actions

Employer should not rely on prior decisions of CO and Board is not bound by those decisions, either. See Tedmar's Oak Factory, 89-INA-62 (Feb. 26, 1990). Mary Ann Emmons , 94-INA-227 (May 25, 1995).

1. Issues not preserved or raised in the FD

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 ).

Where the CO did not challenge the foreign language degree requirement but "suggested that other degrees might also satisfy Employer's needs", the issue was not preserved for consideration on appeal. International Student Exchange of Iowa , 89-INA-261 (Apr. 21, 1992)( en banc ).

Employer applied for certification for the position of cook, domestic, live-in or live-out and required 2 years of experience in the job offered. The CO issued a NOF proposing to deny certification because it appeared as if Employer hired the Alien without the required experience and because Employer had failed to document that the Alien had 2 full years of experience in the job offered in violation of § 656.21(a)(3)(iii). In rebuttal, Employer argued that the Alien had experience in the job duties of cook, domestic as opposed to the job title but it did not address the CO's second basis for denial. The CO denied certification on the first basis listed in the NOF but failed to note that Employer had not addressed the second basis. Citing Loews Anatole Hotel , 89-INA-230 (Apr. 26, 1991) ( en banc ) and Drs. Preisig & Alpern , 90-INA-35 (Oct. 17, 1990), the Board held that the second issue raised in the NOF could not be considered on appeal because it will not consider evidence not preserved by the CO in the FD. Mr. & Mrs. Marc Cohen , 95-INA-150 (Dec. 5, 1996) ( dictum ). See also Gail Bratman , 94-INA-568 (Aug. 30, 1996).

Where the CO in her Final Determination specifically and unequivocally restricted the sole issue involved to that of the necessity for full-time employment for the position of chef, and did not address the issues of unduly restrictive requirements for the job advertised and the business necessity, the Board was unwilling to find that such issues were impliedly raised since Employer was given no time to rebut them and the Board will not consider issues not preserved by the CO. See Drs. Preisig and Alpern, 90-INA-35 (Oct. 17, 1990). Hunter's Inn , 95-INA-278 (Feb. 19, 1997).

Where certification was denied on other grounds, but where the U.S. applicant could very well have experience in the organic/inorganic analyses of groundwater and soils samples and where Employer gives no indication that there was ever an attempt to interview this apparently qualified candidate to explore her credentials, Employer's failure to interview the seemingly qualified candidate could have formed another basis for denial of alien certification. Spectrum Analytical, Inc. 95-INA-324 (Jan. 19, 1997).

2. CO's failure to respond to rebuttal

The Board recently cited Barbara Harris , 88-INA-32 (Apr. 5, 1989) and acknowledged that where the FD "does not respond to Employer's arguments or evidence on rebuttal, the matters are deemed to be successfully rebutted and are not in issue before the Board." In upholding the CO's denial of certification for the position of wood carver, the Board reasoned that Employer had failed to provide requested information concerning Employer's total number of workers, number of carvers, number of months each carver worked per year, financial volume of business, and copies of contracts for hand carving. Had Employer provided the information, the Board further reasoned, the CO may have had other reasons for denying certification, such as the availability of U.S. workers (the Employer in its Motion for Reconsideration had provided new information stating that the Alien had worked as a wood carver for Employer since 1992). But see Judge Huddleston, dissenting. American Stair Builders, Inc. , 95-INA-269 (Feb. 6, 1997).

3. Issue first raised in the FD

no new cases

IV. Stare decisis

no new cases