BALCA consists of ALJs appointed by the Chief ALJ. BALCA decisions may be issued by an individual BALCA judge, by a panel of three BALCA judges, or by BALCA en banc.
Labor certification determinations for the temporary employment of foreign agricultural workers under 20 CFR Part 655, Subpart B may be appealed to the Chief ALJ, who will immediately assign an ALJ, which "may be a panel of such persons from BALCA." 20 CFR 655.171. The party appealing may request an expedited administrative review or a de novo hearing. If the employer requests expedited administrative review, the ALJ will, on the basis of the written record and after due consideration of any written submissions (which may not include new evidence), either affirm, reverse, or modify the CO's decision or remand to the CO for further action. 20 CFR 655.171(a). If the employer requests a de novo hearing, the ALJ will schedule the hearing to take place within 10 days, if the employer so requests. The procedures at 29 CFR Part 18 apply to de novo hearings. 20 CFR 655.171(b).
Labor certification determinations for the temporary employment of foreign non-agricultural workers under 20 CFR Part 655, Subpart A may be appealed to BALCA under 20 CFR § 655.33 (2009). In these cases, BALCA review is limited to the appeal file, the request for review, and any legal briefs submitted. Applicable procedural rules are in the 2009 edition of the CFR because the Department of Labor (DOL) announced the continuing effectiveness of the "2008 H-2B Rule" in response to a Federal court order enjoining DOL from implementing or enforcing the regulatory amendments that DOL promulgated in February 2012. See Temporary Non-Agricultural Employment of H-2B Aliens in the United States; Guidance, 77 Fed. Reg. 28764 (May 16, 2012).
Labor certification determinations for the permanent employment of foreign workers under 20 CFR Part 656 may be appealed to BALCA under 20 CFR §§ 656.26 and 656.27. Appeals are reviewed by a panel of three BALCA ALJs (20 CFR § 656.27(a)), who must review the denial of certification, revocation of certification, or affirmation of a prevailing wage determination on the basis of the record upon which the decision was made, the request for review, and any statements of position or legal briefs submitted and must affirm the decision, direct the certifying officer to grant the certification, overrule the revocation, or overrule the affirmation of the PWD, or direct that a hearing on the case be held. 20 CFR § 656.27(c). If a case is set for hearing, the procedures for ALJ hearings contained in 29 CFR Part 18 apply (20 CFR § 656.27(e)). On December 4, 2012, the Department of Labor published for Notice and Comment, proposed revisions to the Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 (77 FR 72142). No final action has been taken as of February 5, 2015.