Other Fields
Agency Scheme: 
LABRBALC0006
ADJUDICATION STRUCTURE
Hearing Level: Basic Structure
Name of Hearing Office (local name): 
Board of Alien Labor Certification Appeals (BALCA)
Name of Hearing Office (global name): 
Department of Labor: Board of Alien Labor Certification Appeals (BALCA)
Sub-Agency/Bureau/Division:: 
Office of the Secretary
Hearing Officer #1 (Title): 
BALCA Administrative Law Judge
Are administrative appeals permitted from final decisions at the hearing-level stage?: 
No
Comments/Notes on Adjudication Structure: 

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.

PROCESS & PROCEDURE - General Information
Are private parties permitted to have representation at hearings?: 
Yes (All Types of Cases)
Who may serve as a private party representative?: 
Either
Is the agency permitted to have representation at hearings?: 
Yes (All Types of Cases)
Who may serve as an agency representative?: 
Attorney
Regulations/rules of practice for hearings (please include CFR citations): 
20 CFR §§ 656.26 and 656.27 (PERM); 20 C.F.R. § 655.171 (H-2A agricultural workers); 20 C.F.R. § 655.33 (H-2B non-agricultural workers) (2012 regulations currently enjoined by court order)
Other published guidance for hearings (if any): 
29 CFR Part 18
PROCESS & PROCEDURE - Pre-Hearing Procedure
Is discovery permitted by either party at the hearing-level stage?: 
Yes (Some Types of Cases)
Briefly describe the scope and type(s) of discovery available (e.g., depositions, interrogatories, etc.): 
Discovery is only permitted in cases where a hearing is set under 20 CFR §§ 655.171(b) or 656.27(e). Depositions upon oral examination or written questions; written interrogatories; production of documents or other evidence for inspection and other purposes; and requests for admission. (29 CFR § 18.13)
Are ex parte contacts prohibited?: 
Yes (All Types of Cases)
Are parties provided notice of hearing?: 
Yes (All Types of Cases)
PROCESS & PROCEDURE - Hearing Procedure
What types of hearings are permitted at the hearing-level stage?: 
Written (Document-Only) Hearing
In-Person
Video
Phone
Please provide the approximate percentage of each type of hearing relative to the total number of hearings (FY2013)
Written (Document-Only) Hearing: 
98%
In-Person: 
0%
Video: 
0%
Phone: 
2%
How is the type of hearing selected: 
By Private Party
Required by Rule
Depends on Nature of Case/Claim
Please describe: 
In H-2A cases, employers may request either an expedited administrative review or a de novo hearing. 20 C.F.R. § 655.171.
How many hearing officers preside at each hearing?: 
Varies by Case
If "Varies by Case," please describe: 
H-2A labor certification cases are heard by a single ALJ. H-2B labor certification cases are decided by a single member or a three member panel of BALCA. PERM cases are decided by a three member panel of BALCA or by BALCA en banc.
Is witness testimony permitted at hearings?: 
Varies by Case
If "Varies by Case," please describe: 
Witness testimony is only permitted in H-2A cases if the employer requests a de novo hearing; if the employer requests an expedited administrative review, further development of the evidentiary record is not permitted. Witness testimony is not permitted in H-2B cases and PERM cases that are not set for hearing under 656.27(e); the evidentiary record in these cases is limited to the record upon which the decision was made, the request for review, and any statements of position or legal briefs submitted by the parties.
Can parties cross-examine witnesses?: 
Varies by Case
If "Varies by Case," please describe: 
Only in cases where witness testimony is permitted (see answer above).
Can third-parties submit amicus briefs and/or evidence?: 
Adjudication Officer Discretion
Are hearings recorded and/or transcribed?: 
Yes
N/A (Document-Only Hearings)
Are hearings open to the public?: 
Varies by Case
If "Varies by Case," please describe: 
Hearings are presumed open in oral hearings, but may be closed in certain circumstances. This question is not applicable to document-only hearings.
PROCESS & PROCEDURE - Post-Hearing Procedure
Who typically drafts the decision at the hearing-level stage?: 
Adjudication Officer
Staff Attorney
Other
If "Other," please specify (drafts): 
BALCA
Who has authority to issue final decisions?: 
Adjudication Officer
Other
If "Other," please specify: 
BALCA
Do agency regulations or guidance provide time limits for issuance of final decisions?: 
Yes (Some Types of Cases)
If "Yes," please specify these time limit(s): 
Expedited hearings are provided for appeals of determinations made under the H-2A and H-2B labor certification program. If an employer requests an expedited administrative review in an H-2A labor certification matter, the ALJ should issue a written decision within 5 business days after receipt of the administrative file. 20 C.F.R. § 655.171(a). If an employer requests a de novo hearing in an H-2A labor certification matter, the ALJ must render a decision within 10 calendar days after the hearing. 20 C.F.R. § 655.171(b)(1). In H-2B labor certification cases, BALCA should notify the employer, the Certifying Officer (CO), and counsel for the CO of its decision within within 5 business days of the submission of the CO’s brief or 10 days after receipt of the Appeal File, whichever is earlier, using means to ensure same day or overnight delivery. 20 C.F.R. § 655.33(f). No time limits are imposed on PERM appeals.
Is judicial review available after issuance of a final decision?: 
Yes (All Types of Cases)
PROCESS & PROCEDURE - Case Management
How are claims/cases processed at the hearing-level stage?: 
First-In/First-Out Basis
Does the agency permit web-based electronic filing of hearing-related briefs or other documents?: 
No
Are final decisions published and/or posted on the agency website?: 
Yes (All Decisions)
Do agency regulations/rules of practice specify the contents of the administrative record at the hearing-level stage?: 
Yes (All Types of Cases)
If "Yes," please provide citation(s): 
20 CFR § 655.171(a) (H-A administrative review cases) 20 CFR § 655.171(b)(ii) (H-2A de novo cases) 20 CFR § 655.33(a)(5) (H-2B cases) 20 CFR § 656.26 and 656.27 (PERM cases)
Do agency regulations/rules of practice provide for closure of the record at the hearing-level stage (subject to applicable exce: 
Yes (Some Types of Cases)
If "Yes," please provide citation(s): 
29 CFR § 18.54 (for H-2A de novo hearing cases)
PROCESS & PROCEDURE - Comments
Comments/Notes on Hearing-Level Process & Procedures (Optional): 
The length of time needed to adjudicate claims at the hearing-level stage depends on the type of claim: a. Denial of permanent labor certification 447 days b. Revocation of certification 196 days c. Prevailing wage determinations 129 days PERM cases generally do not involve evidentiary hearings. Whether or not the hearing officers have subpoena authority is an unresolved question.
ADJUDICATORS
Total # of Hearing Officers: 
35
ADR: General Information
Is ADR available at one or more points during the hearing process?: 
Yes
If "Yes," when is ADR available?: 
Pre-Hearing
Post-Hearing
Is ADR a mandatory or voluntary process?: 
Voluntary
If "Varies by Case," please describe:: 
For case types subject to 29 CFR Part 18 hearing procedures, 29 CFR § 18.9(e) provides a voluntary settlement judge procedure.
What type(s) of ADR are available?: 
Mediation
Settlement Conference
Who conducts the ADR?: 
Non-Presiding Adjudicator
Other
If "Other," please specify:: 
A "settlement judge" appointed by the Chief Administrative Law Judge under 29 CFR § 18.9 must be an active or retired ALJ who is not the ALJ assigned to hear and decide the case. A senior attorney may be appointed to conduct informal mediations.
Regulations/rules of practice governing ADR process (please include CFR citations): 
29 CFR § 18.9(e) -- Settlement judge procedure.
Comments/Notes on ADR Process (Optional): 
ADR is not available for PERM appeals.
CASELOAD STATISTICS - Summary Statistics
Total # Cases Filed/Opened (FY2013): 
3 621
Total # Cases Decided/Closed (FY2013): 
2 215
Total # Cases Pending (End of FY2013): 
5 222
CASELOAD STATISTICS - Supplementary Statistics
Does your agency maintain annual caseload statistics for this hearing office by case type (e.g., discrimination complaint, licen: 
Yes
Web address: 
http://www.foreignlaborcert.doleta.gov/pdf/PERM_Selected_Statistics_FY_2014_Q4.pdf
Verified by Agency: 
Verified