Representation Before the Office of Administrative Law Judges

Attorneys and non-attorney representatives appearing before the Office of Administrative Law Judges are subject to the standards of conduct and rules governing qualifications of representatives found in the OALJ Rules of Practice and Procedure at 29 C.F.R. § 18.22. In addition, the permanent alien labor certification regulations applicable to claims filed on or after March 28, 2005 provide that:

(b) Representation. (1) Employers may have agents or attorneys represent them throughout the labor certification process. If an employer intends to be represented by an agent or attorney, the employer must sign the statement set forth on the Application for Permanent Employment Certification form: That the attorney or agent is representing the employer and the employer takes full responsibility for the accuracy of any representations made by the attorney or agent. Whenever, under this part, any notice or other document is required to be sent to the employer, the document will be sent to the attorney or agent who has been authorized to represent the employer on the Application for Permanent Employment Certification form.

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(3) No person under suspension or disbarment from practice before any court or before the DHS or the United States Department of Justice's Executive Office for Immigration Review is permitted to act as an agent, representative, or attorney for an employer and/or alien under this part.

20 C.F.R. § 656.10(b)(1) and (3).

If an attorney and or non-attorney representative makes an entry of appearance after the case is docketed before OALJ or BALCA, the USCIS G-28 Entry of Appearance form may be used for purposes of complying with the OALJ Rule of Practice at 29 C.F.R. § 18.22(a).

G-28 Entry of Appearance Form

Types of immigration cases that may be heard by an ALJ, BALCA or the ARB

The Secretary of Labor is responsible under the Immigration and Nationality Act for administering labor certification and attestation programs which are generally designed to ensure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

Employment and Training Administration, Office of Foreign Labor Certification Cases

The Secretary's determination whether to grant a labor certification has been delegated to the Office of Foreign Labor Certification (OFLC), of the Employment and Training Administration. OFLC has extensive information on the various programs it administers on its Web page at www.foreignlaborcert.doleta.gov. The programs OFLC administers include:

  • Permanent labor certifications [immigrant workers]
  • Temporary labor certifications [non-immigrant workers]
    • H-1B, H-1B1 and E-3 [Specialty (professional) workers]
    • H-1C [Temporary foreign workers employed as Registered Nurses (visa type expired in 2004)]
    • H-2A [Agricultural labor or services of a temporary or seasonal nature]
    • H-2B [Unskilled nonagricultural work, which may be one-time, seasonal, peak load or intermittent]
    • D-1 [Longshore work at U.S. ports by crewmembers on foreign vessels]

Many of these programs permit the employer, but not the alien, to appeal an OFLC determination adverse to its interests to an administrative law judge (ALJ) or to the Board of Alien Labor Certification Appeals (BALCA). The OFLC determination letter will provide notice of how and where to file the appeal.

The OFLC is where an employer needs to go for information about filing for labor certification and status of its application prior to any request for hearing or review by an adjudicatory agency. The OALJ or BALCA will have information about the status of an employer's case only after appeal or request for hearing has been docketed.

ESA, Wage and Hour Division Cases

Enforcement actions relating to immigration matters are the responsibility of the Wage and Hour Division. Information about immigration-related compliance matters is found at www.dol.gov/agencies/whd/immigration

To file a complaint that an employer is not complying with the attestations made on a Labor Condition Application under the H-1B, H1B1 and E-3 programs, see www.dol.gov/whd/forms/fts_wh4

If a complaint is timely filed and the Wage and Hour Administrator determines that there is reasonable cause to believe that there is a violation, the Wage and Hour office will conduct an investigation and the Administrator will issue a determination regarding the complaint. Any "interested party," including the H-1B non-immigrant, may request a hearing before an administrative law judge on the Wage and Hour Administrator's determination.

Generally speaking, the H-1B non-immigrant may participate in the hearing as either the prosecuting party (that is, the person contesting the Wage and Hour Administrator's determination), or as the Administrator's witness in a case that has been appealed by the employer. Appeals from a final OALJ decision may be made to the Department of Labor's Administrative Review Board.

Translation

The parties must advise the presiding ALJ promptly if a translator or an interpreter will be needed at the hearing. Parties may provide their own translator or interpreter or may request provision of a translator or an interpreter by the Department of Labor. Parties needing assistance with translation or interpretation services must the presiding ALJ no less than 15 days before the date of the hearing. See also 29 C.F.R. § 18.604 (interpreter may be required to be qualified as an expert and to swear an oath or affirmation to make a true translation).

Change of Address or Change of Status

If you are a party and are a foreign national, and you have a change of address, you should send the DOL adjudicatory agency a copy of the Form AR-11 you are required to complete by USCIS. For more information on reporting a change of address with USCIS, see egov.uscis.gov/coa/displayCOAForm.do

If you are an alien named in a labor certification appeal pending before BALCA, and you obtain permanent status by another means, please have your attorney, representative or employer notify the Board so that the appeal can be dismissed. Doing so may assist other aliens who are still waiting for a labor certification.

Additional Information