Immigration Newsletter: Immigrant Visas - Employment-Based Visas - Labor Certification - Procedure before Certifying Officer

The United States Department of Labor (DOL) has delegated its function of deciding alien labor certifications to certifying officers, who operate on a regional basis to investigate and determine applications. There is a four-step process used by certifying officers to handle claims fairly and reasonably: the issuance of a notice of determination; the initial decision on the application; the notification of application deficiencies to the employer, if the initial decision was a denial; and, when requested, reconsiderations. An administrative appeal is also available from the certifying officer's decision. This topic is discussed fully in a separate article.

Notice of Determination
The first step taken by the certifying officer is the issuance of a notice of determination to the employer. The officer ensures that both the alien and his counsel receive copies of this initial document.

Initial Decision
If the officer decides to grant the application, he or she affixes an official DOL stamp to the application and returns the documentation to the employer or its agent or attorney. If the officer proposes a denial, he or she issues a notice of findings.

Notice of Deficiencies
If the officer's proposed decision is a denial, he or she notifies the employer of any deficiencies in the application. The manner in which this is accomplished depends upon the severity of the deficiencies. Typically, when there are very minor deficiencies such as missing signatures, the application is remanded to allow the employer to correct the deficiency.

Most often, however, the officer issues a notice of findings to the employer, sending a copy to the alien, as well. This notice details the reasons the officer plans to deny the request for a labor certification. Examples of reasons the officer might deny the application include the employer's failure to follow regulations; the availability of U.S. workers, rendering alien employees unnecessary, and; an expected adverse effect of alien labor on the U.S. labor market. The notice must be specific to allow the employer to respond using rebuttal evidence if it wishes to do so.

If an employer disagrees with the reasons for the proposed denial, it may submit rebuttal evidence within 35 days. The affected alien may also submit evidence within that time period if the employer challenges the proposed determination. Although extensions of this time period are available, they must be sought before the original 35-day period expires. The certifying officer must consider any rebuttal evidence before making a final decision, and, if a denial is issued, the officer must detail the reasons for denial in the final determination.

The failure of an employer to address a basis for the officer's proposed determination results in the employer admitting that the officer is correct on that point. In fact, if no rebuttal evidence at all is received, the proposed decision becomes final at the end of the 35-day period.

Reconsiderations
If, within 35 days after the issuance of a final determination, an employer requests reconsideration, the certifying officer may choose to reconsider the matter, including any new evidence submitted by either the employer or the officer.