§ 656.25 - Procedures following a labor certification determination.

(a) After making a labor certification determination, the Certifying Officer shall notify the employer in writing of the determination and shall send a copy of the notice to the alien.

(b) If a labor certification is granted, the Certifying Officer shall follow the document transmittal procedures set forth at § 656.28.

(c) If a labor certification is not granted, the Certifying Officer shall issue to the employer, with a copy to the alien, a Notice of Findings, as defined in § 656.50. The Notice of Findings shall:

(1) Contain the date on which the Notice of Findings was issued;

(2) State the specific bases on which the decision to issue the Notice of Findings was made;

(3) Specify a date, 35 calendar days from the date of the Notice of Findings, by which documentary evidence and/or written argument may be submitted to cure the defects or to otherwise rebut the bases of the determination, and advise that if the rebuttal evidence and/or argument have not been mailed by certified mail by the date specified:

(i) The Notice of Findings shall automatically become the final decision of the Secretary denying the labor certification;

(ii) Failure to file a rebuttal in a timely manner shall constitute a refusal to exhaust available administrative remedies; and

(iii) The administrative-judicial review procedure provided in § 656.26 shall not be available; and

(4) Quote the rebuttal procedures set forth at paragraphs (d), (e), and (f) of this section.

(d) Written rebuttal arguments and evidence may be submitted;

(1) By the employer; and

(2) By the alien, but only if the employer also has submitted a rebuttal.

(e) (1) Documentary evidence and/or written arguments to rebut all of the bases of a Notice of Findings, which may include evidence that the defects noticed therein have been cured, shall be mailed by certified mail on or before the date specified in the Notice of Findings to the Certifying Officer who issued the Notice of Findings.

(2) Failure to file a rebuttal in a timely manner shall constitute a failure to exhaust available administrative appellate remedies.

(3) All findings in the Notice of Findings not rebutted shall be deemed admitted.

(f) If a rebuttal, as described above, is submitted on time, the Certifying Officer shall review that evidence in relation to the evidence in the file, and shall then either grant or deny the labor certification pursuant to the standards set forth in § 656.24(b).

(g) The Certifying Officer shall send a Final Determination form to the employer, and shall send a copy to the alien.

(1) If a labor certification is granted, the Certifying Officer shall follow the document transmittal procedures set forth at § 656.28.

(2) If the labor certification is denied, the Final Determination form shall:

(i) Contain the date of the determination;

(ii) State the reasons for the determination;

(iii) Quote the request for review procedures at § 656.26 (a) and (b); and

(iv) Advise that, if a request for review is not made within the specified time, the denial shall become the final determination of the Secretary.