Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992


Supplement current through January 1997


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I. Substitution prohibited

I. Substitution prohibited

See also Pfeiler & Assoc. Engineers, Inc ., 92-INA-206 (July 22, 1992) ( per curiam ); Franklin Mushroom Farms, Inc ., 92-INA-225 (July 14, 1992) ( per curiam ).

In Kooritzky v. Sec'y. of Labor , 1992 U.S. Dist. LEXIS 9401, Case No. 91-3011-LFO (D.D.C. 1992), Judge Oberdorfer concluded that the Department of Labor's regulations prohibiting the substitution of aliens, promulgated subsequent to the 1990 amendments to the Act, were valid. On appeal to the United States Court of Appeals for the District of Columbia, a unanimous Court overturned that decision and invalidated the Department of Labor's regulations prohibiting the substitution of aliens. The Court concluded that the regulations were promulgated without adequate notice and opportunity for comment in violation of 5 U.S.C. §553. The case was remanded to the district court to "fashion appropriate relief in accordance with this opinion. Kooritzky v. Sec'y of Labor , 1994 U.S. App. Lexis 4800, (D.C. Cir. March 18, 1994).

A substitution request, postmarked by certified mail on November 22, 1991, was untimely as the regulations require that the CO actually receive the request on or before November 22, 1991. The request was date-stamped as received by the CO on November 26, 1993, after the deadline had passed. Karla L. Hoffman , 92-INA-188 (July 2, 1993).

A duplicate of the labor certification form submitted with a timely request for substitution satisfies the National office policy. Accordingly, the CO incorrectly refused to consider the timely substitution request solely because employer failed to submit an original labor certification form. Kids 'R' Us , 93-INA-31 (Mar. 18, 1994).