[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.320]

[Page 536-538]
 
                      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 D_Attestations by Facilities Using Nonimmigrant Aliens as 
                            Registered Nurses
 
Sec. 655.320  Appeals of acceptance and rejection of attestations 
submitted for filing and of State plans.

    (a) Appeal right--(1) Attestations; when to file appeals from 
acceptances and rejections. On the basis that the explanation and 
documentation provided and maintained by the facility does not or did 
not meet the criteria set forth at Sec. 655.310(d)(2)(ii), 
(g)(1)(i)(B)(5), (g)(1)(ii), or (k)(3)(iii), an interested party may 
appeal an acceptance or rejection by ETA of an attestation submitted by 
a facility for filing in those cases where DOL performed an attestation 
review function under those provisions. The appeal shall be limited to 
ETA's determinations on the element(s) reviewed and shall not be an 
appeal as to any other element(s) in the attestation. An interested 
party may also appeal ETA's invalidation or suspension of a filed 
attestation due to a discovery by ETA that it made an error in its 
reviewing of the attestation (see Sec. 655.310(o). In the case of an 
appeal of an acceptance, the facility shall be a party to the appeal; in 
the case of the appeal of a rejection, invalidation, or suspension, the 
collective bargaining representative (if any) representing nurses at the 
facility shall be a party to the appeal. Appeals shall be in writing; 
shall set forth the grounds for the appeal; shall state if de novo 
consideration by BALCA is requested; and shall be mailed by certified 
mail within 30 calendar days of the date of the action from which the 
appeal is taken (i.e., the acceptance, rejection, suspension or 
invalidation of the attestation).
    (2) Annual State plans; when to file appeals from disapprovals. A 
Governor of a State may appeal ETA's disapproval of an annual State 
plan. Individual facilities in the State may file briefs as amici 
curiae. Appeals shall be in writing and shall be mailed by certified 
mail within 30 calendar days of the disapproval of the annual State 
plan.
    (3) Where to file appeals. Appeals made pursuant to this section 
shall be in writing and shall be mailed by certified mail to: Director, 
U.S. Employment Service, Employment and Training Administration, 
Department of Labor, 200 Constitution Avenue, NW., Room N-4456, 
Washington, DC 20210.
    (4) Complaints. Appeals under this paragraph (a) shall not encompass 
questions of misrepresentation by a health care facility or 
nonperformance by such a facility of its attestation. Such complaints 
shall be filed with an office of the Wage and Hour Division, United 
States Department of Labor.
    (b) Transmittal to BALCA; case file. Upon receipt of an appeal 
pursuant to this section, the Certifying Officer (or, in the case of 
State plans, the Director, USES), shall send to BALCA a certified copy 
of the ETA case file, containing the attestation and supporting 
documentation and any other information or data considered by ETA in 
taking the action being appealed. The administrative law judge chairing 
BALCA shall assign a panel of one or more administrative law judges who 
serve on BALCA to review the record for legal sufficiency and to 
consider and rule on the appeal.
    (c) Consideration on the record; de novo hearings--(1) General. 
BALCA shall not remand, dismiss, or stay the case, except as provided in 
paragraph (c)(2) of this section, but may otherwise consider the appeal 
on the record or in a de novo hearing (on its own motion or on a party's 
request). Interested parties and amici curiae may submit briefs in

[[Page 537]]

accordance with a schedule set by BALCA. The ETA official making the 
determination from which the appeal was taken shall be represented by 
the Associate Solicitor for Employment and Training Legal Services, 
Office of the Solicitor, Department of Labor, or the Associate 
Solicitor's designee. If BALCA determines to hear the appeal on the 
record without a de novo hearing, BALCA shall render a decision within 
30 calendar days after BALCA's receipt of the case file. If BALCA 
determines to hear the appeal through a 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) BALCA shall ensure that, at the request of the appellant, the 
hearing is scheduled to take place within a reasonable period after 
BALCA's receipt of the case file (see also the time period described in 
paragraph (c)(1)(iv) of this section);
    (iii) Technical rules of evidence, such as the Federal Rules of 
Evidence and subpart B of the Rules of Practice and Procedure for 
Administrative Hearings Before the Office of Administrative Law Judges 
(29 CFR part 18, subpart B), shall not apply to any hearing conducted 
pursuant to this subpart, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by BALCA in conducting the hearing; BALCA may exclude 
irrelevant, immaterial, or unduly repetitious evidence; the certified 
copy of the case file transmitted to BALCA by the Certifying Officer 
(or, in the case of State plans, the Director, USES), shall be part of 
the evidentiary record of the case and need not be removed into 
evidence; and
    (iv) BALCA's decision shall be rendered within 120 calendar days 
after BALCA's receipt of the case file.
    (2) Dismissals and stays. If the BALCA determines that the appeal is 
solely a question of misrepresentation by the facility or is solely a 
complaint of the facility's nonperformance of the attestation, BALCA 
shall dismiss the case and refer the matter to the Administrator, Wage 
and Hour Division, for action under subpart E. If the BALCA determines 
that the appeal is partially a question of misrepresentation by the 
facility or is partially a complaint of the facility's nonperformance of 
the attestation, BALCA shall refer the matter to the Administrator, Wage 
and Hour Division, for action under Subpart E of this part and shall 
stay BALCA consideration of the case pending final agency action on such 
referral. During such stay, the 120-day period described in paragraph 
(c)(1)(iv) of this section shall be suspended.
    (d) BALCA's decision. After consideration on the record or a de novo 
hearing, BALCA shall either affirm or reverse ETA's decision, and shall 
so notify the appellant; the Director, if the affirmation or denial 
involves a State plan; Certifying Officer; Chief, Division of Foreign 
Labor Certifications; and any other parties. See Sec. 655.450 custody 
of the record of the appeal.
    (e) Decisions on attestations. With respect to an appeal of the 
acceptance, rejection, suspension or invalidation of an attestation, the 
decision of BALCA shall be the final decision of the Secretary, and no 
further review shall be given to the matter by any DOL official.
    (f) Decisions on annual State plans. With respect to an appeal of 
the disapproval of an annual State plan, the decision of BALCA shall be 
the final decision by the Secretary, unless a petition for review of the 
BALCA decision is filed with the Secretary and the Secretary determines 
to review the decision.
    (1) Filing of petition for review. The Director or the State 
desiring review of the decision and order of BALCA may petition the 
Secretary to review the decision and order. To be effective, such 
petition shall be received by the Secretary within 30 days of the date 
of the decision and order. Copies of the petition shall be served on all 
parties and on BALCA.
    (2) Form of petition for review. No particular form is prescribed 
for any petition for Secretary's review permitted by this paragraph (f). 
However, any such petition shall:
    (i) Be dated;

[[Page 538]]

    (ii) Be typewritten or legibly written;
    (iii) Specify the issue or issues stated in the BALCA decision and 
order giving rise to such petition;
    (iv) State the specific reason or reasons why the party petitioning 
for review believes such decision and order are in error;
    (v) Be signed by the party filing the petition or by an authorized 
representative of such party;
    (vi) Include the address at which such party or authorized 
representative desires to receive further communications relating 
thereto; and
    (vii) Attach copies of BALCA's decision and order, and any other 
record documents which would assist the Secretary in determining whether 
review is warranted.
    (3) Notice of determination to review. Whenever the Secretary 
determines to review the decision and order of BALCA on an annual State 
plan, a notice of the Secretary's determination to do so shall be served 
upon BALCA and upon all parties to the proceeding within 30 days after 
the Secretary's receipt of the petition for review.
    (4) Hearing record. Upon receipt of the Secretary's notice, BALCA 
shall within 15 days forward the complete hearing record to the 
Secretary.
    (5) Contents of Secretary's notice. The Secretary's notice shall 
specify:
    (i) The issue or issues to be reviewed;
    (ii) The form in which submissions shall be made by the parties; and
    (iii) The time within which such submissions shall be made.
    (6) Filing of documents. All documents submitted to the Secretary 
pursuant to this paragraph (f) shall be filed with the Secretary of 
Labor, U.S. Department of Labor, Washington, DC 20210, Attention: 
Executive Director, Office of Administrative Appeals, Room S-4309. An 
original and two copies of all documents shall be filed. Documents are 
not deemed filed with the Secretary until actually received by the 
Secretary. All documents, including documents filed by mail, shall be 
received by the Secretary either on or before the due date.
    (7) Service of documents. Copies of all documents filed with the 
Secretary pursuant to this paragraph (f) shall be served simultaneously 
upon all other parties involved in the proceeding. Service upon the 
Director shall be in accordance with paragraph (a)(3) of this section.
    (8) Secretary's decision. The Secretary's final decision pursuant to 
this paragraph (f) shall be issued within 180 days from the date of the 
notice of intent to review. The Secretary's decision shall be served 
upon all parties and BALCA.
    (9) Transmittal of record. Upon issuance of the Secretary's decision 
under this paragraph (f), the Secretary shall transmit the entire record 
to the Chief Administrative Law Judge for custody pursuant to Sec. 
655.450.