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Update on Appeals with the Board of Alien Labor Certification Appeals

There has been a steady flow of decisions but nothing especially notable. It appears the Board is close to finishing the 2019 cases. While that’s good progress, it still puts the backlog at two to three years, which suggests refiling remains a preferable option over an appeal. This could change in the next year or so as Board filings continue to fall—from 174 in 2020 to 122 in 2021, to 106 in the first 11 months of 2022. With lengthy prevailing wage determination (PWD) delays, waiting 18 months to two years for a BALCA decision might not look so bad. What will never change, however, is that refiling allows you to fix errors; appeals force you to defend them. The former always seems preferable to me. In looking at these numbers historically, the dramatic drop in filings began in 2017, when only 329 cases were docketed compared to 8,016 in 2016. Filings then dropped another 30% with only 190 filings in 2018.

This strategy comes from the American Immigration Lawyers Association.

One drawback is the fact that some cases are so poorly prepared and filed, there is virtually no way to fix them with a new process. But there are plenty of appeals that could be helped by filing a new case and dropping the appeal.

Provided by:

David Swaim, Managing Partner
David Swaim & Associates, P.C.