Interesting case currently pending before the Board of Alien Labor Certification Appeals (BALCA), the administrative body at the Department of Labor (DOL) that reviews denials of PERM labor certifications in employment-based green card petitions.

The case involves the violation of due process by the DOL when it failed to provide a fair warning about its interpretation of the notification requirement before applying a new, more restrictive interpretation of a regulation – requiring employers to notify certain laid-off U.S. employees of new job opportunities before the employers are permitted to hire foreign workers.

The DOL quite is notorious for failing to provide guidance and leaving it to employers to guess what processes the Department will find to be in compliance with the regulations.

Yesterday, the American Immigration Lawyers’ Association (AILA) and the American Immigration Council (AIC) filed an Amicus Brief*  arguing that the DOL acted arbitrarily and in violation of due process when it did not give prior notice.

Stay tuned for the outcome.

Amicus Brief – A brief by a party or an organization interested in a particular case, but not a litigant, participating in the argument. For example, the American Civil Liberties Union often files amicus briefs on behalf of a party who contends their constitutional rights have been violated, even though the claimant has his or her own attorney.