U.S. Department of Labor Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 693-7300 (202) 693-7365 (FAX) Cite as: Lindsborg Community Hospital Association, 2012-PER-03395 (BALCA 9-19-2012) Issue Date: 19 September 2012 BALCA Case No.: 2012-PER-03395 ETA Case No.: A-11074-62748 In the Matter of: LINDSBORG COMMUNITY HOSPITAL ASSOCIATION, Employer on behalf of MAGRACIA, CHURCHILL LUZARITA, Alien. Before: Burke, Colwell, Johnson, Purcell and Vittone Administrative Law Judges ORDER OF DISMISSAL This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the PERM regulations found at Title 20, Part 656 of the Code of Federal Regulations. The Board has expedited this matter in view of the circumstances, which appear to have caused prejudice to the Employer’s new application because of delay in processing a withdrawal of the application on appeal. On November 22, 2011, the Employer requested that the Certifying Officer (CO) reconsider an October 27, 2011 denial of certification of the above-referenced application. On April 10, 2012, the CO issued a decision on reconsideration finding that the grounds for denial of certification were valid. The CO then automatically forwarded an Appeal File to the Board.1 On September 17, 2012, the Employer’s attorney contacted the Board inquiring into the status of the appeal explaining that months earlier he had sent to the CO the Employer’s letter withdrawing the application, had been provided information that the withdrawal letter had been 1 We note that the Employer’s motion for reconsideration said nothing about requesting BALCA review. The regulation at 20 C.F.R. § 656.24(g)(4) provides the CO discretion to reconsider or to treat a request for reconsideration as a request for BALCA review. The regulation, however, does not state that the CO must automatically forward an Appeal File to BALCA if the CO denies reconsideration. Thus, the fact that the matter was treated as an appeal may not have been procedurally correct.
forwarded to the Board, but had just learned that an appeal was still pending before the Board.The attorney had discovered that because the appeal had not yet been dismissed by BALCA, theEmployer was not allowed to file a new PERM application for the same job, and that this mayhave implications for the timing of the new application and the supporting prevailing wagedetermination. The attorney emailed to the Board a copy of the memo the CO used to transmitthe withdrawal letter to the Board. Review of the matter indicates that the Board received the Appeal File from the AtlantaNational Processing Center on April 11, 2012 through an electronic transmission. The Board hashad difficulty with some electronically transmitted Appeal Files, and for some unknown reasonthis particular Appeal was not yet entered into the Board’s docket computer as of the date of theEmployer’s attorney’s status inquiry on September 17, 2012. The fact that the appeal was notlisted in the Board’s docket computer might explain why the withdrawal had not been processedby the Board earlier. From the documentation emailed by the Employer’s attorney to the Board on September17, 2012, it is clear that on May 7, 2012, the Employer mailed to the CO a withdrawal of theapplication. It appears also that the CO forwarded the withdrawal letter to the Board assupplemental information for the Appeal File. It is not clear when the CO forwarded the letter ofwithdrawal to the Board. Based on the foregoing, IT IS HEREBY ORDERED that the appeal in the above-captioned matter is DISMISSED. This is a question that needs an answer. The Board does not have before it the question of whether equitable consideration shouldbe given to whatever impact the delay in processing of the Employer’s withdrawal request mighthave on a new PERM application. The Board notes for the record, however, that it normallyprocesses withdrawal requests within a week or two of receipt, and that the delay between Mayand September 2012 in this particular case for processing the withdrawal appears to have beenattributable in large part to a problem in docketing the electronic Appeal File. For the Board: WILLIAM S. COLWELL Associate Chief Administrative Law Judge -2-