BALCA Affirms Matter of El Rio Grande

The Board of Alien Labor Certification Appeals (BALCA) has affirmed its jurisdiction to review Service Contract Act (SCA) wage determinations used in labor certifications, over the strong objections of the Department of Labor's Office of the Solicitor and the Certifying Officer (CO).  In reaching this decision, BALCA extensively quoted the arguments made in the joint response filed by the American Immigration Law Foundation (AILF), American Immigration Lawyers Association (AILA) and the attorney for the employer, Sarah A. Dahl from Avirom & Associates.

On February 4, 2000, BALCA issued the first en banc decision in the Matter of El Rio Grande, 98-INA-133 (Feb. 4, 2000).  It held that 1) the occupation of foreign specialty cook falls under the classification of Cook II under the SCA; 2) BALCA has the jurisdiction to review the reasonableness of an SCA wage determination in a labor certification context, and 3) in order to effectuate this review, the CO must provide documentation of how the SCA wage determination was made.  The CO then filed a motion to reconsider, claiming that BALCA lacked the jurisdiction to review a SCA prevailing wage determination, and that the CO should not therefore be required to provide information on how the SCA prevailing wage was determined.

To preserve BALCA’s jurisdiction, and because AILF and AILA had previously acted as amici in this case, AILF, AILA and the employer filed a joint response to the DOL's motion to reconsider.  In the response, we argued that 1) BALCA has jurisdiction to review all aspects of a labor certification denial, including the reasonableness of an SCA wage determination used in the denial, and 2) that the practice of “slotting” (used to determine the SCA prevailing wage) is not acceptable in labor certifications because slotting compares the wages of widely different occupations, such as cooks and janitors.

On July 28, 2000, BALCA issued a decision affirming its jurisdiction to review the reasonableness of SCA wage determinations in labor certifications.  Specifically, BALCA "agreed with Employer and amicus that there is nothing in the applicable regulatory language that evinces an intent to limit BALCA's authority to review [SCA] prevailing wage determinations."  While BALCA also affirmed the usage of slotting to determine SCA prevailing wage used in labor certifications, it admonished the Certifying Officers that they "must provide information on why slotting was used, which positions were compared, and why the comparison was reasonable."

BALCA's decisions in the Matter of El Rio Grande are important not only because they preserved BALCA's jurisdiction to review an important area of the labor certification process, but also because these decisions stand for the proposition that in order to have a fair adjudication process, the Certifying Officers must act reasonably and must explain the basis of their decisions.