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Examining Department of Labor 8 CFR (1938) and BALCA to day

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  • 1. 8 CFR (1938) Under the Department of Labor Compared to Today (2012)After looking at the old version of the pertinent regulations [8 CFR (1938) show below,see Parts 12 & 15] from 1938 when INS was still under the Secretary of Labor, it seemsthat some holdover can be seen as to the Department of Labor’s penchant towardsmultiple levels of Administrative Appeals. Currently in 2012, the DOL still has multipleappellate bodies. The relationship between an Immigration Judge (IJ) and the Board ofImmigration Appeals (BIA) is quite familiar to most aliens in or coming to the UnitedStates. That familiar relationship is analogous to the relationship between DOL’s Officeof Administrative Law Judges (OLAJ) and the Board of Alien Labor CertificationAppeals (BALCA). While BALCA is no more or less important or influential that theBIA, it is less well known. It is not hard for one to understand why when you look at theraw facts. Approximately, 1.2 to 1.3 million aliens are admitted to the United States aslawful permanent residents (LPRs) and issued permanent resident cards (PRCs or“greencards”) every year. Of that large number, approximately (or slightly over) onemillion of those LPRs are approved as family-based immigrants. The remainder compriseall the others. There are five employment-based categories (some with a variety of sub-divisions) plus refugees, asylees, and diversity visa “lottery” winners. The volume ofcases differs but I am not sure by how much. After all, DOL’s ALJs and BALCA alsohear non-immigrant Labor Condition Application and Wage Determination issues andthere are many non-immigrant worker visas issued each year most of which are formultiple years and most may be renewed (some with limits and some for lengthystretches of time).See: http://www.dol.gov/appeals/ • Administrative Review Board (ARB) Whistleblower, immigration, child labor, employment discrimination, federal construction/service contract, et al. Appeals • Benefits Review Board (BRB) Black Lung Act and Longshore and Harbor Workers Compensation Act Appeals • Employees Compensation Appeals Board (ECAB) Federal Employee Compensation Act Appeals • Office of Administrative Law Judges (OALJ) Trial court for many of the Department of Labors programs o Board of Alien Labor Certification Appeals (BALCA): Permanent Labor Certification AppealsImmigration Collection of the OALJ Law Library (ALJ, BALCA & ARB decisions, laws, etc..)See: http://www.dol.gov/appeals/aliens.htmTypes of immigration cases that may be heard by an ALJ, BALCA or the ARBThe Secretary of Labor is responsible under the Immigration and Nationality Act for administering laborcertification and attestation programs which are generally designed to ensure that the admission of foreign Page 1 of 8
  • 2. 8 CFR (1938) Under the Department of Labor Compared to Today (2012)workers into the United States on a permanent or temporary basis will not adversely affect the jobopportunities, wages, and working conditions of U.S. workers.ETA, Division of Foreign Labor Certification CasesThe Secretarys determination whether to grant a labor certification has been delegated to the Division ofForeign Labor Certification (DFLC), of the Employment and Training Administration. DFLC hasextensive information on the various programs it administers on itsWeb page at http://workforcesecurity.doleta.gov/foreign/.The programs DFLC administers include: • Permanent labor certifications [immigrant workers] • Temporary labor certifications: [non-immigrant workers] o H-1B, H-1B1 and E-3 [Specialty (professional) workers] o H-1C [Temporary foreign workers employed as Registered Nurses (visa type expired in 2004)] o H-2A [Agricultural labor or services of a temporary or seasonal nature] o H-2B [Unskilled nonagricultural work, which may be one-time, seasonal, peak load or intermittent] o D-1 [Longshore work at U.S. ports by crewmembers on foreign vessels]Many of these programs permit the employer to appeal a DFLC determination adverse to its interests toan administrative law judge (ALJ) or to the Board of Alien Labor Certification Appeals (BALCA). TheDFLC determination letter will provide notice of how and where to file the appeal. Appeals of denials ofH-2B visa cases go to U.S. Citizenship and Immigration Services (USCIS) of the Department ofHomeland Security, and not to the Department of Labor’s OALJ, BALCA or the Administrative ReviewBoard (ARB). See 8 C.F.R. § 214.2(h).The DFLC is where an employer needs to go for information about filing for labor certification and statusof its application prior to any request for hearing or review by an adjudicatory agency. The OALJ orBALCA will have information about the status of an employers case only after appeal or request forhearing has been docketed.ESA, Wage and Hour Division CasesEnforcement actions relating to immigration matters are the responsibility of the Wage and Hour Divisionof the Employment Standards Administration. Information about immigration-related compliance mattersis found at www.dol.gov/whd/immigration/index.htmTo file a complaint that an employer is not complying with the attestations made on a Labor ConditionApplication under the H-1B, H1B1 and E-3 programs, see www.dol.gov/whd/forms/fts_wh4.htmIf a complaint is timely filed and the Wage and Hour Administrator determines that there is reasonablecause to believe that there is a violation, the Wage and Hour office will conduct an investigation and theAdministrator 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 HourAdministrators determination. Generally speaking, the H-1B non-immigrant may participate in thehearing as either the prosecuting party, or as the Administrators witness in a case that has been appealedby the employer. Appeals from a final OALJ decision may be made to the Department of LaborsAdministrative Review Board. Page 2 of 8
  • 3. 8 CFR (1938) Under the Department of Labor Compared to Today (2012) CHAPTER I- IMMIGRATION AND NATURALIZATION SERVICE § 12 .4 PART 12-BOARD OF SPECIAL INQUIRY Be<. Be<. 12.1 Organtzatlon i oatb ot members. 12.4 Medical examiner as witness. 12.2 Hearings before boards of InQuiry; 12.5 Record Ill Illiteracy caaca. procedure; rights ot allen. 12.6 Excluded allen ; Informed of rlgbt& 12.3 Development of fscts relating to 12.7 Allen exeluded for removable penaltles incurred by transporta· cause i reopening ot case. tlon eompany. 12.8 Allen certified for mental condl· Uon i rtgbt ot medical appeaL Section 12.1 Or ganizat ion; oath of members. Boards of spe- cial inquiry shall be composed of th~& members. Boards shall con- sist of duly designated immigrant inspectors, one of whom shall a<:t as cha.innan1 except that a. duly designated immigration employee ma.y serve as tne third member a.nd secretary. At a. port of entry where 8 board of special inquiry is not regularly maintained, and a.t which 8 sufficient number of duly designated immigra.tion employees is not available, the officer in charge is a.uthorized, when necessity exists, to create a board which may include other person; preferably Govern- ment officials, determined by the Secretary of Labor as eligible for such service. l£very person appointed to serve on a boa.rd of special inquiry shall first sul:iscribe to an oath of office.•t (Sec. 17, 39 Stat. 887; 8 U.S. C. 11>3) (12-A-1, 2] §§ 12.1 to 12.8, Inclusive, tssued under the authority contained In sec. 23, 89 Stat. 892, sec. 24, 48 Stat. 162; 8 U.S.C. 102, 222. StatutA!s Interpreted or ap. plied and statutes giving special authority are listed 1n parentheses at the e nd ot specific sectlons. tThe source of 11 12.I to 12.8, lnelu&lve, Is Immigration rules and regulations, I&NS, Jan. I , I980, edition of Dec. 3I, I 936. Cnoss REFEBEf"CE: For examination of Cblneae aliens bY boards ot speelal Inquiry, see f§ 42.2--42.6. 12.2 Hearings before boards of inquiry; procedure; r ights of a.lien. Boa.rds of special inquiry shall determine all ca.ses as prompt- ly a.s circumstances permit, due re"ard being had to the necessity of giving the alien a fair hearin~. Hearing before the boa.rds "sna.ll be separate a.nd aJ>art from tne public"; but the alien may have one friend or relative present after the preliminary part of the hea.r- ing bas been completed: Provided, First, that such friend or rela.- tive is not and wilt not be employed by him a.s counsel or attorney; second, that, if a witoess, he has alrea.dy completed his testimony ; third, that he is not a.n agent or a. representa.tive a.t any immigra.- tion sta.tion of an immigrant aid or other similar society or orga.mza.- tion; and, fourth, that he is either a<:tually ~la.ted to or an a.qua.int- ance of the alien.•t (Sec. 17,39 Sta.t. 887; 8 U.S.C. 153) [12-B- 1] 12.3 Development of f acts rela t ing to penalties incurred by t ransportation company. In all cases in which there is any ~ason, other than the issuance of a. surgwns certificate, for believing that any one of the administra.tive tines prescribed by the law, a.nd speci- fied in Part 23, may have been incurred, boa.rds shall be careful to develop in the course of their hea.rings all facts and circumst8Jlces material to a determination of the transportation companys liability to such tine.•t [ 12-C-1] 12.4 Medica l exa.miner as witness. Where the certificate of the medical exanriner fa.ils to describe particularly the natu~, char- •nror statutory and eouree cltatloos. see note to f 12.1. P age 67 [67] Page 3 of 8
  • 4. 8 CFR (1938) Under the Department of Labor Compared to Today (2012) ,. § 12.5 1ITLE 8-ALIENS AND ·CITIZENSEIIP acter, and extent of the physical defect which it is certified may affect the ability of the u.lien to earn a liviug, boards of special inquiry shall call such examiner as a vitness and interrogate him fully as to tho pa.rticular nature1 character, and extent of the a.fllic- tion certi6ed. Such testimony snail be made u. part of the record.•t (Sees. 16, 26, 27, 43 Stat. 163, 166, 167; 8 U.S.C. 216, 146, 146) [12- C-2] 12-5 Record in illiteracy cases- In all cases where the reading te&-t is applied and aliens are rejected as unable to read, the board record shall, in addition to the card number, clearly set forth (a) that the alien designated the particular langt!age used in the test, (b) the complete English text appearing on the card (c) the deli- . nite finding by the board a.s to t he degree in which t.~e nlien failed to read, and (d) if the alien claims to be within any class eJ<empted from the test, a definite finding by the board ns to the validity of such chtim.•t (Sec. 3, 39 Stat. 875, 41 Stat. 981, sec. 17, 39 Stat. 887; 8 U.S.C. 136 (o}, 153) [12-D-1] 12-6 Excluded alien; informed of rights. Where an alien is el<cluded by a board of special inquiry he shall be advised of the decision of said board and the reason therefor, u.nd when entitled to appeal to the Secretary of Labor he shall be so advised, Provided That the el!:nCt lnnguage employed in advising alien of his right to appeal, together vitn a full and accurate transcript of aliens reply, shall be inserted in the record and ronde part thereof. An excluded alien shall be informed that the return voyage is at the expense of the transportation company which brought him; that such trnnportation company must return him in the same class in which he came. The fact that he has been so informed shall be entered in the minutes_.! (Sees. 16, 17, 18, 39 Stat. 885, 887; 8 U.S.C. 152, 153, 154} [12-E-1, 2) 12-7 Alien eJ<cluded for removable cause; reopening of case. Where an a.lien is eJ<cluded merely because of nonpossession of a visa, or for a.ny cause which can readily be removed or overcome, the case mo.y be reopened within a. period of thirty days from the date of original exclusion. Where the statistical month ends prior to final disposition, the case for sto.tistical purposes will be carried into the succeeding statistical month_.t (Sec. 17, 39 Stat. 887; 8 U.S. C. 153} [12-E-3) 12-8 Alien certified for mental condition; right of medical appeal. An alien certified for insanity or mental defect shall be advised of his right to appeal to a board of medical officers of the United States Public H ealtlt Service, and that he may introduce be- fore such board one eltpert medical witness at his own cost and ex- pense. The exact language employed in so informing the alien of his rights, together with a full and accurate b1!.nscript of his reply, shall be inserted in the record and made a part thereof. In the event the alien desires to appeal to such medical board the officer in charge at the port, in conformity with regulations prescribed by the United Page 68 • t"or statutory and source citation~.~ note to J 12.1. t68J Page 4 of 8
  • 5. 8 CFR (1938) Under the Department of Labor Compared to Today (2012) CI:IAPTE.R 1- mtMIG.RATlON AND NATURALIZATION SEILVICE § 13.2 St-ates Public HealU1 Service1 shall make such arrangements with the office of the Surgeon Gene1·aJ as may be necessary for the conening of such medical board without the case being first reported to the Central Otlice.•t (Sec. 16, 39 Stat. 885; 8 U.S.C. 152) (12-E-4] PART 13--READMISSION AND TEMPORARY ADMISSION See. Se<. 13.1 Aliens returning to unrelinquisbed 13.4 Excludable aliens upplyiDg at sen- domicUe; domicUc defined. ports tor temporary admission 13.2 Temporary admisslou from contlg~ without advance consent; proce- uous territory ; medical treat· dure. ment; mandatory exchtdnble 13.5 Appllcatioo for nd.mtssloo by allen allen. Unble to be excluded. 13.3 Temporary admission or trausit denied, wltbout ad"ance consent, to eert.aln alieos. Section 13.1 Aliens returning to unrelinquished domicile ; domicile defined. Aliens returning after a temporary absence to an unrelinquished United States domictle of seven consecuti"e years may be admitted in the discretion of the Secretary of Labor and under such conditions as he may prescribe. In such case satisfactory proof of domicile in the Umted States for seven consecutive years, and of departure therefrom with the intention of returning thereto, will be exacted. E"ery case of exclusion for any cause in which tne alien has given such proof, shall be promptly brought by the official in charge to the attention of t he Secretary of LabOr, through the usual official channels, with a complete report of the reasons for the aliens exclusion and of the proof which ht<S been offered of continuous and unrelinquished domicile, together with a statement of the duration of the absence. Domicile, for the purposes of this section, mea.ns that place where a person has his true, fixed, and permanent home, and principal esta.blis~ent, ~ which, whenever be is absent, he has the mtentron of returmng.••rr (Sec. 3, 89 Stat. 875; 8 U.S.C. 186 (p)) (18--A-1, 2] ..U 13.1 to 13.5. inClusive, issued under tbe autbortty contained in sec. 28, 39 Stat.. 892, see. 24, 43 Stat 162; 8 U.S.O. 102, 222. Statutes Interpreted or applied and statutes giving special authority are listed in parenth_,. nt the end ot s pecific sections. ttl"he source of U 13.1 to 18.5, Inclusive, ls lmmigratiou ruJes nnd regulntlous, I&NS, Jan. 1, 1930, edition of Dec. 81, 1936. 13.2 Temporary admission from contiguous territory; medi· cal treatment; mandatorily excludable alien. Aliens manda- torily excluded and seeking temporary admission from foreign con- tiguous territory for the purpose of undergoing medical or surgical treatment in the United States may be admitted for such purpose when it appears to t11e satisfaction of the officer in charge that an emergency exists fo1· immediate medical or surgical aid, n.nd if such alien shall furnish satisfactory "Uaranty or a bond Wlth approved surety in the penal sum of not less tha.n $500 conditioned that he will depart from the United States when such medical or surgical treatment is completed. Aliens of the class referred to, seeking tern· pornry admission for the purpose of entering a printe or public hospital, sn.nitnrium, or medical institution for treatment, may be • tFor statutory and sou rce citations. see note to § 12.1. Page 69 (69) Page 5 of 8
  • 6. 8 CFR (1938) Under the Department of Labor Compared to Today (2012) § 13.3 TITLE 8-ALIENS AND CITIZENSHIP admitted for such pur,Pose when it satisfactorily apJ?ears to the officer in chart;e that the des1gnated private or public hosp1tal or sanitarium or medical institution which the alien has arranged to enter for treat- ment has on file with the Central Office a bond covering such case and properly conditioned that aliens treMed in such designated hospital, sarutarium, or institution, will depart from the United States when such treatment is completed. In either case above referred to the alien may be required in the discretion of the officer in charge to sub- mit in duplicate an urunounted photograph of himself 2 by 2 inches in size, the distance from the top of head to point of chin to be ap- proximately 1~ inches. All other applications made by the manda- torily excluded· classes for temporary admission from foreign con- tiguous territory shall be subm1tted to the Central Office for special ruling.•t (Sec. 3, 39 Stat. 875; 8 U.S.C. 186 (q)) [13- B-1] 13.3 Temporary admission or transit denied, without advance consent, to certain aliens. Temporary admission to the United States, or for the purpose of proceeding in transit-through the United States, or to proceed from a port thereof directly or by way of any other United States port or ports to a foreign port, will not be granted in the case of any alien brought to a seaport ot the United States (or in the case of a transit alien who is brought to a designated Canadian seaport), who at the time of arrival is within any of the classes of aliens hereafter described in this section, unless prior to departure from abroad consent shall have been obtained from the Secretary of Labor for the aliens temporary admission to the United States, and if upon arrival he is found not to be within any of such classes other than as stated in the application for such consent; any alien affiicted with idiocy, insanit,Y, imbecility, feeble-mindedness, epilepsy, constitutional psychopathic inferiority-, chronic alcoholism, tuberculosis in any form, or a loathsome or d~rous contagious disease, if it appears to the satisfaction of the Secretary of Labor that the alien was so aftlicted at the time of foreign embarkation and that the existence of such disease or disability mi_ght have been de- tected by means of a competent medical examination at the time of foreign embarkation, or any alien who is found to be e:tcludable under the provisions of section 8 of the Immigration Act of 1917 (89 Stat. 875; 8 U.S.C. 136), because found to be unable to read, or as a native of that portion of the continent of Asia. and the islands adjacent thereto described in said section, if it appears to the satisfaction of the Secretary of Labor that these disabilities might have been detected by the exercise of reasonable precaution pnor to the departure of such alien from abroad.•t [13-B-2] 13.4 Excludable aliens applying at seaports for temporary admission without advance consent; procedure. The cases of all aliens of the excludable classes brought to seaports of tho United States who apply for temporary admission, except cases withln . § 13.3, shall tie submitted to the Department for special ruling.•t (Sec. 3, 39 Stat. 875; 8 U.S.C. 186(q)) [13-B-31 13.5 Application for admission by alien liable to be excluded. An alien seeking admission under the provisions of section 21 of the • tFor statutory and soorce eltatlons, see note to t 13.1. Page 6 of 8
  • 7. 8 CFR (1938) Under the Department of Labor Compared to Today (2012) ClLUTER I-IMMIGRATION AND NATURALIZATION SERVICE § 15.1 Immigration Act of 1917 (89 Stat. 891; 8 U.S.C. 158), shall make application therefor either direct to the Central Office or by appeal from an excluding decision of a board of special inquiry, and in either case shall show in such application that a bond with approved surety or collateral in the penal sum of not less than $500, conditioned as authorized by said section 21 and on form approved by the Secretary of Labor, has been furnished, or that in lieu of such bond cash of not less than $500 or postal mone.Y order of like amount has been depos- ited for the purposes and subJect to the same conditions as prescribed in said bond form. Upon receipt of such ap)llication the Central Office may in its discretion authorize the adm1ssion of such alien.•t [18-C-1) PART 14-ASSISTANCE TO ADMITTED ALIENS Section 14.1 Admitted alien assisted; when. Notwithstanding admission, and for reasons satisfactory to the officer in charge, any alien may remain a few days at an immigration station upon payment of actual expen,.<es. If in such a case the aelay in leaving the immigra- tion station is due to accident or other unavoidable circumstances and the alien is without sufficient means to defray the expenses incident thereto, the immigration officer in charge, in his discretion, may au- thorize such exrnse, reporting the case promptly to the Central Office with ful reasons for his action and requesting that the authorization be ratified. (Sec. 28, 39 Stat. 892, sec. 24, 43 Stat. 162; 8 U.S.C. 102, 222) [14-A-1, Im. R. & Rags., Jan. 1, 1930) PART 15-APPEALS FROI1 DECISIONS BY BOARD OF SPECIAL I NQUffiY Se<. Sec. 15.1 Vho may appeaL 1>.5 Cases reopened by Central omce 15.2 When no appeal lles. or Department. 15.3 Time for Jlling appeal. 15.6 Cases reopened at request ot local 15.4 Forwarding appeal record. lxnmlgratlon ofDclals. Section 15.1 Who may appeal. An alien desiring to appeal may do so individually or through any society admitted to an immigration station or through any relative or friend or through any person, in- cluding attorneys permitted to yractice before the immigration au- thorities. Where such an appea has been taken any further appeal shall be disregarded. Appeals purporting to be filed on behalf of an alien but without his knowledge or consent previously. obtained may be ignored. A board member who dissents from a majority vote to adni1t also may take an a,Ppeal. In such a case the alien shall be allowed the same OP(>Ortumty for representation as though the appeal were his, but his l:inef or ar§ument must be submittea at the same time that the board members appeal is forwarded to the Central Office. When an alien is certified for a physical defect other than tuberculosis in any form or a loathsome contagious or dangerous contagious disea.se1 the board of special inquiry must decide on the basis of all the ev1denee (including the medical certificate) whether or not such certified defect may affect his ability to earn a living. • tFor statutory aod source cltatloDS, sec note to f IS.!. Page 71 [71) Page 7 of 8
  • 8. 8 CFR (1938) Under the Department of Labor Compared to Today (2012) § 15.2 TITLE 8-A.LU:NS AND CITIZENSTHP An alien rejected on said pound is entitled to appeaJ.•t (Sec. 17, 39 Stat. 887; 8 U.S. C. 153) lli>-A-1, C-1] •f! 15.1 to 15.6. inclusive, l$$ue<l under the authority contnlnoo In see. 23, 39 Stat. 892, sec 24, 43 Stat. 162; S U.S.C. 102, 222. Statutes lnte<J)retoo or applled aOd statutes glvin~ special authority are IIS!OO In parentheses at the end of specUlc sections. tThe source of U 15.1 to 15.6 inclusive, is lmmigTation mi<S and re~atlons, l&NS, Jan. 1, 1930, editiOD of Dee. 31, 1006. 15.2 When no appeal lies. No appeal lies where the decision of a board of special inquiry, based upon the certificate of the ex- amining medical officer, as required by section 17 of the Immigration Act of 1917 (39 Stat. 887; 8 U.S.C. 153), rejects an alien because (a) he is affiicted with tuberculosis in any form or a loathsome con- tagious or dangerous contagious disease, or (b) he is an idiot or an imbecile or an epileptic or is, insane or feeble-minded, or (c) he is affiicted with constitutional psychopathic inferiority or has any mental defect or is a chronic alcoholic.•t [11>-D-1] 15.3 Time for filing appeal. Appeals must be filed promptly. The officer in charge may refuse to accept an appeal filed after the alien has been removed from an immigration station for deportation, provided the alien has had a reasonabfe opportunity to appeal before such removal. Any appeal filed more than 48 hours after the time of an excluding decision may be rejected by the officer in charge in his discretion_.t [11>-B-1] 15.4 Forwarding appeal r ecord. The complete appeal record. including the immigration visa or permit to re-enter the United States; shall be forwarded promptly to the Secretar~ of Labor through the Commissioner of Immigration and Naturahzation.*t (Sec. 17, 39 Stat. 887; 8 U.S.C. 153) [11>-E-1) 15.5 Cases reopened by Central Office or Department. When· ever a case is referred back to a board by the Central Office or th~ Department in order that additional evidence may be taken, such case is thereupon reopened; and after the new evidence has been taken the board shall render a new decision, in which it may, in its discretion, reaffirm, alter, or reverse its preVIous decision. The mere action of referring back n. case under such circumstances is not to be taken as an indication of anr. disapproval by the Central Office or the Department of the boards decision or of what the new decision should be_.t (Sec. 17,39 Stat. 887; 8 U.S.C. 153) [11>-F- 1) 15.6 Cases reopened at request of local immigration officials. Either before or after receipt of a decision of the Department affirm- in~ an exclusion decision, local immigration officials may stay. depor- tatiOn and request permission to reopen the case upon learning o·f new evidence which i.n their opinion is of such relevancy and materi- ality as, in justice to the alien or the United States, requires considera- tion by the board. Such request should contain a br1 statement of ef the general nature of the new evidence. In emergent cases, the re- quest must be made by code telegram. Upon receipt of· permission from t.h e Central Office to reopen, the board again acquires full con- trol of the case as under § 15.5_.t (Sec. 17, 89 Stat. 887; 8 U.S.C. 153) [ 11>-G-1) Page 72 • t bor statutory and source citations, see note to i l:S.1 ... (72] Page 8 of 8