RFIs, audits and appeals

The analyst reviewing the application wants something clarified before deciding it. In DOL's queue language this is a request for information, and it is lighter than an audit: it asks a question rather than calling in the whole recruitment file.

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What follows. The employer or its attorney answers and the case goes back to the analyst for a determination. Of the ones that have reached a decision, most were certified.

No published definition. The words “request for information” and the acronym RFI appear nowhere in 20 CFR 656. The nearest regulatory hook is 656.20(d), which lets the certifying officer request supplemental information before making a determination, and it sets no deadline. That is why no response window is quoted here: the letter itself states the date, and that date is the one that counts. An audit is the separate, formal instrument under 656.20(a), with its own status and its own queue.

A formal demand for the documentation behind the application: the recruitment report, the tear sheets, the notice of filing, the resumes, and why each U.S. applicant was rejected. The certifying officer can order one after reviewing the case, and some applications are selected at random for quality control.

Deadline. 30 days from the date on the audit letter. The officer may grant one extension of up to 30 days, at their discretion. Missing it costs more than the application: not responding in time counts as a refusal to exhaust administrative remedies, and the appeal to BALCA is then not available at all.

What follows. The officer reviews what arrives and certifies or denies. Two different consequences hang off a failure to respond, and they are worth keeping apart: simply missing the date denies this application, while a substantial failure to provide the documentation can also require the employer to run supervised recruitment on its FUTURE filings for up to two years.

20 CFR 656.20

An audit letter has gone out and DOL is waiting on the employer's documents.

What follows. The certifying officer decides once the response arrives.

No published definition. The status string is DOL's workflow label. The audit itself is 20 CFR 656.20, above.

A notice about a deficiency DOL found in the recruitment the employer ran before filing.

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What follows. The employer responds and the analyst decides.

No published definition. We could not confirm what NORD stands for from any DOL or OFLC publication, so this page does not expand the acronym rather than guess at it. What is measurable is where these cases sit: every one of them was filed inside a single four-month window, which is the signature of a batch review rather than of something that happens continuously.

DOL takes over the recruitment. The employer drafts an advertisement, the certifying officer approves it and decides where it runs, applicants send their resumes to the officer rather than to the employer, and the employer reports back on each one.

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Deadline. Two clocks, both 30 days. The draft advertisement goes to the officer within 30 days of being notified, and the recruitment report within 30 days of the officer asking for it. Missing either one is a denial.

What follows. The officer reviews the recruitment report and decides. A newspaper advertisement has to run three consecutive days, one of them a Sunday.

20 CFR 656.21

The application is not moving and no determination has been made.

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No published definition. DOL publishes no definition of this status. It is worth knowing that almost every case carrying it belongs to a single employer, so it is unlikely to describe a condition that applies broadly.

After a denial, the employer asks the same certifying officer to look again. The request can only carry documents DOL already received, or documents the employer had no earlier chance to submit that existed when the application was filed and were kept on file.

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Deadline. 30 days from the date the denial was issued.

What follows. The officer either reconsiders, or treats the request as a request for review and sends it to the Board. Reconsideration is not available at all where the denial came from disregarding a system prompt or a direct instruction.

20 CFR 656.24(g)

The step that puts a denial in front of the Board. It goes to the certifying officer who issued the denial rather than to the Board directly, and the officer forwards the file. Reconsideration asks that officer to change their mind; a request for review asks a judge to.

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Deadline. 30 days from the date of the determination. It has to identify the determination, set out the grounds, and attach the Final Determination. Letting both this window and the reconsideration window pass counts as a failure to exhaust administrative remedies, and the denial then becomes the final determination of the Secretary, which forecloses a federal court looking at it later.

20 CFR 656.26

The case is before the Board of Alien Labor Certification Appeals, a panel of administrative law judges sitting outside the office that denied it. The Board reviews the record the decision was made on, plus the request for review and any briefs, and everyone gets 30 days to file a statement of position.

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What follows. The Board affirms the denial, directs the certifying officer to grant the certification, or orders a hearing. The regulation lists those three and nothing else.

20 CFR 656.27

The ordinary queue. The case is in line for a human analyst and nothing has been asked of the employer.

No published definition. A workflow status rather than a regulatory term. This is where the overwhelming majority of pending cases sit, and DOL publishes which filing month its analysts have reached. There is a second status, IN PROCESS, holding a few dozen cases, and DOL documents no difference between the two.