BALCA questions

[Perma]

This is an odd case and I appreciate any and all input from you PERM gurus out there! I had filed a request for reconsideration over a month ago. I recieved a notification on Monday stating that the Certifying Officer (CO) has reviewed the employer's request and has determined that one or more of the denial reason(s) is/are valid.

The original reason given was that the employer failed to provide documentation with original signatures even though the employer did provide all appropriate documentation with original signatures.

The ads are to old and I'm left with two choices - re-file OR submit the case to BALCA.

My lawyer is recommending BALCA but I have heard this can take a long time. 1) Does anyone know how long it can take to get a decision from BALCA?
2) Is it possible to send a case to BALCA and then decide to withdraw and file a new LC?
3) Has anyone ever sent their case or know of a case that has gone to BALCA and received a favorable response?

I appreciate any feedback. Thank you!

 

[gdhiren]

I have yet to hear anyone who got response of their appeal to BALCA, no timefames for such cases have been officially announced by DOL. So the appeals are not generally recommended unless you have to preserve the PERM filing date in order to get the H1B extension beyond 6 yrs. If you have enough time left on H1b, start a fresh case without wasting much time.

I don't know about withdrawing a case once it goes to BALCA, it may be possible but I am not aware. You can consult a well qualified attorney on that.

Now I am also confused about appeals, doesn't it automatically go to BALCA when CO stands on his earlier decision?

 

[Perma]

I was confused too. Apparently you have 5 days to decide WHETHER you want it to go to BALCA or not. If you do not withdraw it automatically goes to BALCA. Here's a copy of the email my employer received:

"The Certifying Officer (CO) has reviewed the employer's request and has determined that one or more of the denial reason(s) is/are valid. Corrections cannot be made to an application once it has been submitted. After receiving a denial, the employer may choose either (a) to submit a new Form ETA 9089 (see 20 CFR 656.24(e)(5) and (6)) or (b) to request reconsideration and/or review (see 20 CFR 656.24(g) and 656.26(a)).



This courtesy e-mail does not constitute legal advice or a recommendation on how to proceed; rather, it serves to inform the employer of its options:



_____ (1) Withdraw the Request for Reconsideration/Review or Request for
Review and file a new 9089 (For those cases in which the attorney and employer believe the deficiency noted in the final determination letter can be easily addressed, it is more expeditious to submit a new, revised Form ETA 9089 rather than to request reconsideration and/or review. Please note that all regulatory requirements, including recruitment timeframe requirements, must be met at the time any Form ETA 9089 is submitted).



OR



____ (2) Continue with the employer's appeal to the Board of Alien
Labor Certification Appeals (BALCA). Reminder: Pursuant to 20 CFR 656.24(e)(5), the employer cannot file a new application in the same occupation for the same alien while a request for review is pending with BALCA.



Please reply to this e-mail indicating the employer's selection by placing an "X" in front of the appropriate option no later than 12:00 midnight (ET), 5 business days from the date of this e-mail. Please do not change the subject line of this e-mail.



Note: Your failure to reply timely to this e-mail will result in the case being sent to BALCA.



Please also note that a review of the Request for Reconsideration/Review or Request for Review does not include a review of documents or information not specifically required or requested by the CO. Pursuant to 20 CFR
656.24(g)(2) and 656.26(a)(2), a Request for Reconsideration/Review or Request for Review may only include such evidence that was within the record upon which the denial of labor certification was based.



Thank you for your cooperation.

Atlanta National Processing Center

 

[Perma]

I am sharing more information about the BALCA process that I found out in case anyone else ever has to go through the same process.

These are responses directly from Atlanta PLC. By the way they seem to very prompt in responding to email inquires .


BALCA PROCESSING TIMES
They do not know the processing times for BALCA. One needs to communicate with BALCA directly. Here is the information provided.

Board of Alien Labor Certification Appeals
United States Department of Labor
Suite 400 North
800 K Street, NW
Washington, DC 20001-8002

From: http://www.dol.gov/ejudication/

WITHDRAWAL OF APPEALS
Once an appeal to BALCA is made the employer can choose to withdraw. The attorney must contact BALCA directly and BALCA will dismiss the case and send notification to Atlanta National Processing.