By Attorneys Gregory J. Boult & Nancy E. Miller
With a few exceptions, employment-based immigration begins with the filing of an application for labor certification with the U. S. Department of Labor (DOL). Upon its approval, an immigrant visa petition is submitted to U. S. Citizenship & Immigration Services (CIS). DOL is concerned that the employment of the alien in the job offered will not harm the American labor market and will not deprive a U.S. worker of a job for which they are qualified and willing to perform. CIS’ focus is on whether the alien is qualified for the job and whether the employer is able and intends to follow through with its financial commitment. A denial of either step need not be the end of the process as administrative appellate remedies exist.
The Board of Alien Labor Certification Appeals (“BALCA”) is charged with reviewing Labor Certification denials as well as revocations. Review must be sought by the employer within thirty days from the date of the denial or revocation. That is the date the denial is issued – not the date it is received. With few exceptions, untimely-filed appeals are not considered. When DOL receives the appeal request, the Certifying Officer who denied the application creates an appellate file which is forwarded to BALCA and to the employer or its legal counsel. The employer is afforded the opportunity to submit written legal arguments (known as a brief) showing why the denial was legally incorrect. The argument must be based on statutes, regulations and case law as well as the evidence already submitted with the application because BALCA can only consider the appeal file and the briefs. BALCA will then issue a written decision on the appeal.
The Administrative Appeals Office (“AAO”) has jurisdiction to review the denial of an employment-based immigrant visa petition. Here again, the appeal must be filed within thirty days of the denial. Unlike an appeal to BALCA, no appeal file is generated and no briefing schedule is established by the AAO. In creating the argument and preparing the brief, the employer or counsel must rely on the documents which they submitted to or received from CIS as well as their legal research. The brief must be submitted with the appeal notice or within thirty days thereafter.
While the AAO is procedurally distinguishable from BALCA, both review their respective appeals de novo (without regard to the legal conclusions or assumptions previously decided by the original decision maker). After reviewing the administrative record, including any appellate brief submitted by the employer, the AAO will issue a written decision on the appeal.
An unsuccessful appeal to BALCA or the AAO may not be the end of the appellate process. In most instances, an employer who has unsuccessfully appealed to BALCA or the AAO can seek further review in United States District Court through the Administrative Procedure Act. The Administrative Procedure Act is a statute which regulates the conduct of federal agencies such as the Department of Labor and Citizenship and Immigration Services. Utilizing this statute, an employer can challenge the denial of Labor Certification or an immigrant visa petition in United States District Court in instances when a statute or a regulation is ignored or misapplied, or when findings of fact are erroneous or not based on evidence in the administrative record.
The unsuccessful completion of the appellate process may still afford some final options. In most instances, the denial of Labor Certification does not preclude the filing of a new Labor Certification by the employer for the same employee. Further, in many instances, the denial of an immigrant visa petition does not preclude an employer from filing again using the original certified Labor Certification. Of course, refiling means a new priority date which translates into additional delay. Therefore, it is essential for an employer to first consider pursuing the appellate process as the alternative could be the loss of a valuable priority date. However, there may be some instances where it is better to forgo an appeal and just refile.
The process of obtaining an immigrant visa to the United States through an employer is a complex undertaking which can be greatly complicated when one step is denied. An experienced and knowledgeable immigration attorney can evaluate a denial or a revocation and determine the appropriate next course of action. Time and money are always involved when an employer seeks to obtain legal status for a valued-existing or a desired-potential employee. Such efforts are an investment. And employers should pursue every available legal avenue to protect such an investment.