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ted documentation, the employer could supplement
the appeal file with a copy of the complete paper file.
Additionally, because a supplement can only include
documentation that was submitted to the CO before
the final determination (20 CFR §656.26(b)(3)), consider explaining when and how the documents in the
supplement were submitted to the CO—ideally, by
relying on contextual clues already existing in the appeal file. For example, was the document listed in the
cover letter to the audit response? Is there other evidence in the appeal file that suggests that the omitted
documentation was previously submitted?
Format of a Supplement to the Appeal File
The CO transmits the appeal file to BALCA electronically. See, e.g., Matter of Lindsborg Cmty. Hosp.
Ass'n, 2012-PER-3395, at 2 (BALCA Sept. 19, 2012).
Thus, any voluminous supplement to the appeal file
also should be provided in an electronic format, such
as on a CD, preferably with consecutive pagination
for ease of citation. The employer must send a copy of
any supplement to the associate solicitor. See 20 CFR
The regulations do not specify a deadline for supplementing the appeal file. BALCA has previously noted
that waiting until after the completion of briefing is
"too late." Matter of Thomas Jefferson Univ., 2010-PER1400, at 10. The best practice would be to submit any
supplement no later than with the employer's Statement of Intent to Proceed, which is filed after BALCA
dockets the appeal.
The appeal file is an important component of any
PERM appeal. Analyzing this file early—and ensuring its accuracy—will allow practitioners to put their
clients in the best position for success at BALCA.
Jonathan L. Moore is an attorney with McCandlish
Holton, PC in Richmond, VA. The author's views do
not necessarily represent the views of AILA nor do
they constitute legal advice or representation.
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