On November 7, 02103, the American Immigration Council, in collaboration with the American Immigration Lawyers Association, filed an amicus brief in an en banc case pending before the Board of Alien Labor Certification Appeals (BALCA), an administrative body at the Department of Labor (DOL) that reviews denials of PERM labor certifications. The case involves a regulation that requires employers to notify certain U.S. employees that they have laid off about new job opportunities before the employers are permitted to hire foreign workers.
The focus of the amicus brief is the DOL’s failure to provide fair warning about its interpretation of the notification requirement before applying a new, more restrictive interpretation. The DOL is notorious for failing to provide guidance and leaving it to employers to guess at what processes the DOL will find to be in compliance with the regulations. Here, the DOL offered no guidance, but, through a pattern of decision making, established a practice of approving certain notification procedures. Amici argue that the DOL acts arbitrarily and violates due process when it does an about face without giving prior notice.