20 CFR 655.1315 – Administrative review and de novo hearing before an administrative law judge
(a) Administrative review—(1) Consideration. Whenever an employer has requested an administrative review before an ALJ of a decision by the CO: Not to accept for consideration an Application for Temporary Employment Certification; to deny an Application for Temporary Employment Certification; to deny an amendment of an Application for Temporary Employment Certification; or to deny an extension of an Application for Temporary Employment Certification, the CO will send a certified copy of the ETA case file to the Chief Administrative Law Judge by means normally assuring next-day delivery. The Chief Administrative Law Judge will immediately assign an ALJ (which may be a panel of such persons designated by the Chief Administrative Law Judge from BALCA established by 20 CFR part 656, which will hear and decide the appeal as set forth in this section) to review the record for legal sufficiency. The ALJ may not remand the case and may not receive evidence in addition to what the CO used to make the determination.
Terms Used In 20 CFR 655.1315
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Remand: When an appellate court sends a case back to a lower court for further proceedings.
(2) Decision. Within 5 business days after receipt of the ETA case file the ALJ will, on the basis of the written record and after due consideration of any written submissions (which may not include new evidence) from the parties involved or amici curiae, either affirm, reverse, or modify the CO’s decision by written decision. The decision of the ALJ must specify the reasons for the action taken and must be immediately provided to the employer, the CO, the Administrator, OFLC, and DHS by means normally assuring next-day delivery. The ALJ’s decision is the final decision of the Secretary.
(b) De novo hearing. (1) Request for hearing; conduct of hearing. Whenever an employer has requested a de novo hearing before an ALJ of a decision by the CO: Not to accept for consideration an Application for Temporary Employment Certification; to deny an Application for Temporary Employment Certification; to deny an amendment of an Application for Temporary Employment Certification; or to deny an extension of an Application for Temporary Employment Certification, the CO will send a certified copy of the ETA case file to the Chief Administrative Law Judge by means normally assuring next-day delivery. The Chief Administrative Law Judge will immediately assign an ALJ (which may be a panel of such persons designated by the Chief Administrative Law Judge from BALCA established by 20 CFR part 656 of this chapter, but which will hear and decide the appeal as provided in this section) to conduct the de novo hearing. The procedures in 29 CFR part 18 apply to such hearings, except that:
(i) The appeal will not be considered to be a complaint to which an answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take place within 5 calendar days after the ALJ’s receipt of the ETA case file, if the employer so requests, and will allow for the introduction of new evidence; and
(iii) The ALJ’s decision must be rendered within 10 calendar days after the hearing.
(2) Decision. After a de novo hearing, the ALJ must affirm, reverse, or modify the CO’s determination, and the ALJ’s decision must be provided immediately to the employer, CO, Administrator, OFLC, and DHS by means normally assuring next-day delivery. The ALJ’s decision is the final decision of the Secretary.