[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.112]

[Page 490]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
 CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES--Table of Contents
 
   Subpart B--Labor Certification Process for Temporary Agricultural 
             Employment in the United States (H-2A Workers)
 
Sec. 655.112  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 administrative law 
judge of a decision not to accept for consideration a temporary alien 
agricultural labor certification application, of the denial of a 
temporary alien agricultural labor certification, or of a penalty under 
Sec. 655.110 of this part, the RA shall 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 shall 
immediately assign an administrative law judge (which may be a panel of 
such persons designated by the Chief Administrative Law Judge from the 
Board of Alien Labor Certification Appeals established by part 656 of 
this chapter, but which shall hear and decide the appeal as set forth in 
this section) to review the record for legal sufficiency. The 
administrative law judge shall not remand the case and shall not receive 
additional evidence.
    (2) Decision. Within five working days after receipt of the case 
file the administrative law judge shall, on the basis of the written 
record and after due consideration of any written submissions submitted 
from the parties involved or amici curiae, either affirm, reverse, or 
modify the RA's denial by written decision. The decision of the 
administrative law judge shall specify the reasons for the action taken 
and shall be immediately provided to the employer, RA, the Director, and 
INS by means normally assuring next-day delivery. The administrative law 
judge's decision shall be the final decision of the Secretary and no 
further review shall be given to the temporary alien agricultural labor 
certification application or the temporary alien agricultural labor 
certification determination by any DOL official.
    (b) De novo hearing--(1) Request for hearing; conduct of hearing. 
Whenever an employer has requested a de novo hearing before an 
administrative law judge of a decision not to accept for consideration a 
temporary alien agricultural labor certification application, of the 
denial of a temporary alien agricultural labor certification, or of a 
penalty under Sec. 655.110 of this part, the RA shall send a certified 
copy of the case file to the Chief Administrative Law Judge by means 
normally assuring next-day delivery. The Chief Administrative Law Judge 
shall immediately assign an administrative law judge (which may be a 
panel of such persons designated by the Chief Administrative Law Judge 
from the Board of Alien Labor Certification Appeals established by part 
656 of this chapter, but which shall hear and decide the appeal as set 
forth in this section) to conduct the de novo hearing. The procedures 
contained in 29 CFR part 18 shall apply to such hearings, except that:
    (i) The appeal shall not be considered to be a complaint to which an 
answer is required,
    (ii) The administrative law judge shall ensure that, at the request 
of the employer, the hearing is scheduled to take place within five 
working days after the administrative law judge's receipt of the case 
file, and
    (iii) The administrative law judge's decision shall be rendered 
within ten working days after the hearing.
    (2) Decision. After a de novo hearing, the administrative law judge 
shall either affirm, reverse, or modify the RA's determination, and the 
administrative law judge's decision shall be provided immediately to the 
employer, RA, Director, and INS by means normally assuring next-day 
delivery. The administrative law judge's decision shall be the final 
decision of the Secretary, and no further review shall be given to the 
temporary alien agricultural labor certification application or the 
temporary alien agricultural labor certification determination by any 
DOL official.

[52 FR 20507, June 1, 1987, as amended at 59 FR 41876, Aug. 15, 1994]

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