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)

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.

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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, the

Employer was not allowed to file a new PERM application for the same job, and that this may

have implications for the timing of the new application and the supporting prevailing wage

determination. The attorney emailed to the Board a copy of the memo the CO used to transmit

the withdrawal letter to the Board.

Review of the matter indicates that the Board received the Appeal File from the Atlanta

National Processing Center on April 11, 2012 through an electronic transmission. The Board has

had difficulty with some electronically transmitted Appeal Files, and for some unknown reason

this particular Appeal was not yet entered into the Board’s docket computer as of the date of the

Employer’s attorney’s status inquiry on September 17, 2012. The fact that the appeal was not

listed in the Board’s docket computer might explain why the withdrawal had not been processed

by the Board earlier.

From the documentation emailed by the Employer’s attorney to the Board on September

17, 2012, it is clear that on May 7, 2012, the Employer mailed to the CO a withdrawal of the

application. It appears also that the CO forwarded the withdrawal letter to the Board as

supplemental information for the Appeal File. It is not clear when the CO forwarded the letter of

withdrawal to the Board.

Based on the foregoing, IT IS HEREBY ORDERED that the appeal in the above-

captioned matter is DISMISSED.

The Board does not have before it the question of whether equitable consideration should

be given to whatever impact the delay in processing of the Employer’s withdrawal request might

have on a new PERM application. The Board notes for the record, however, that it normally

processes withdrawal requests within a week or two of receipt, and that the delay between May

and September 2012 in this particular case for processing the withdrawal appears to have been

attributable in large part to a problem in docketing the electronic Appeal File.

For the Board:

WILLIAM S. COLWELL

Associate Chief Administrative Law Judge