McCurry Contractors, Inc.

U.S. Department of Labor 	Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
McCURRY CONTRACTORS, INC.,
PETITIONER,
ARB CASE NO. 2026-0014
ALJ CASE NO. 2025-TLN-00196
ALJ JONATHAN C. CALIANOS
DATE: January 26, 2026
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge
ORDER OF DISMISSAL
On December 18, 2025, Petitioner McCurry Contractors, Inc., filed a Petition
for Review with the Administrative Review Board (Board) of a December 11, 2025
Decision and Order Affirming Denial of Certification (D. & O.) by the Board of Alien
Labor Certification Appeals (BALCA). The Board does not have jurisdiction to hear
and decide appeals of BALCA decisions. Therefore, we dismiss this case.
B ACKGROUND
Employers who want to temporarily employ foreign workers for non-
agricultural work under the H-2B program may apply to the Department of Labor’s
Employment and Training Administration, Office of Foreign Labor Certification
(OFLC).0F
1 An OFLC Certifying Officer (CO) may certify or deny the application
based on regulatory criteria.1F
2 If denied, the employer may request administrative
review before BALCA.2F
3
1 	20 C.F.R. §§ 655.15- 655.19.
2 	Id. §§ 655.50-655.54.
3 	Id. §§ 655.53, 655.61. BALCA is a permanent Board chaired by the Department of
Labor Chief Administrative Law Judge (ALJ) and consisting of ALJs designated by the
Chief ALJ. Id. § 655.5.

2
On July 31, 2025, Petitioner filed an application under the H-2B labor
certification program.3F
4 On September 22, 2025, a CO issued a Final Determination
denying certification.4F
5 On October 1, 2025, Petitioner requested administrative
review with BALCA.5F
6 On December 11, 2025, BALCA issued the D. & O., which
affirmed denial of the certification. Petitioner then filed an appeal of the D. & O.
with the Board on December 18, 2025.
On January 6, 2026, the Board issued an Order to Show Cause directing
Petitioner to explain why the Board has jurisdiction in this matter. Petitioner
responded the same day with a Brief in Response to Order to Show Cause
(Response).
DISCUSSION
The ARB’s jurisdiction is limited to the statutes explicitly delegated to it by
the Secretary of Labor.6F
7 The Secretary has delegated the authority to review a CO’s
denial of an H-2B application only to BALCA; the Secretary has not delegated any
power or authority to the ARB to have any role in that process or to review BALCA
decisions.7F
8 The Board confirmed its lack of jurisdiction over these cases recently in
Lawn Groomers, ARB No. 2025-0046, ALJ No. 2025-TLN-00033 (ARB May 14,
2025).
4 	D. & O. at 2.
5 	Id. at 3.
6 	Id.
7 	Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020);
Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Five M’s, LLC, ARB No. 2019-0014, ALJ
Nos. 2015-FLS-00010, -00011, slip op. at 14 (ARB Nov. 13, 2020) (“The Board was created
by delegation from the Secretary of Labor and, therefore, has a limited and defined
jurisdiction and scope of authority.”).
8 	See Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13186-87; Rules Concerning
Discretionary Review by the Secretary, 85 Fed. Reg. 30608, 30608-09 (May 20, 2020)
(stating that while the ARB “has authority to hear appeals from the decisions of the
Department’s Office of Administrative Law Judges (OALJ) about certain immigration, child
labor, employment discrimination, federal construction/service contracts, and other issues,”
BALCA “has authority over appeals from the decisions of the Employment and Training
Administration’s adjudication of foreign labor certification applications.”); 20 C.F.R.
§ 655.61(a) (“[E]mployers may request an administrative review before the BALCA of a
determination by the CO.”).

3
In its Petition, Petitioner included a jurisdictional statement stating that the
Board is authorized to review the underlying BALCA order pursuant to 20 C.F.R. §
655.61(i).8F
9 However, the cited regulation, 20 C.F.R. § 655.61, does not include a
paragraph (i), and the regulation makes no reference to the Board.9F
10 In its
“Standard of Review,” Petitioner also stated that “[t]he ARB reviews BALCA
decisions de novo on legal questions and for substantial evidence on factual
findings,” citing 29 C.F.R. § 26.14 and Sec’y U.S. Dep’t of Labor v. Beverly
Healthcare-Hillview, ARB No. 13-088 (Dec. 23, 2016).10F
11 The cited regulation11F
12 and
case12F
13 do not appear to exist, either.13F
14 Finally, Petitioner cited Secretary’s Order 01-
2020, but the Board ruled in Lawn Groomers that the Secretary’s Order does not
give the Board jurisdiction in BALCA appeals.14F
15
In its Response, Petitioner now appears to concede that the ARB does not
have jurisdiction over its appeal. Instead, Petitioner requests that the Board refer
this matter to the Secretary of Labor, who Petitioner believes has the discretion to
9 	Petition at 2.
10 	The regulation contains only paragraphs (a) through (f).
11 	Id. at 4.
12 	Part 26 of Title 29 of the Code of Federal Regulations sets for the Board’s Rules of
Practice and Procedure. That Part includes only four sections—29 C.F.R. §§ 26.1 to 26.4—
and contain no provisions regarding the Board’s jurisdiction or BALCA.
13 	The case number indicated in the case citation belongs to a case arising under the
Davis-Bacon Act, In re Strickland, regarding conformance requests. There is also a case
titled Sec’y of Lab. v. Beverly Healthcare-Hillview from the Third Circuit Court of Appeals
(541 F.3d 193), decided in 2008, involving citations by the Occupational Safety and Health
Administration against a healthcare employer for failing to compensate employees for
travel expenses. Neither case appears to have any relevance to the issues here or involve
BALCA.
14 	In response to our Order to Show Cause, Petitioner acknowledged that 29 C.F.R. §
655.61 does not include a paragraph (i) and that the cited case “do[es] not involve BALCA
appeals in the H-2B context.” Response at 1-2.
15 	Lawn Groomers, Inc., ARB No. 2025-0046, slip op. at 2 (“The Secretary has
delegated the authority to review a CO’s denial of an H-2B application only to BALCA; the
Secretary has not delegated any power or authority to the ARB to have any role in that
process or to review BALCA decisions.”).

4
review the underlying BALCA decision.15F
16 Specifically, Petitioner states that
“Section 6 of [Secretary’s Order 01-2020] allows the Secretary to ‘assume
jurisdiction over any case before the ARB or BALCA’ at his discretion.”16F
17 Petitioner
also states that “[t]his [discretionary review] mechanism was extended to H-2B
BALCA cases through subsequent rulemaking.”17F
18
Secretary’s Order 01-2020 does not refer to BALCA or provide for
discretionary review of BALCA decisions, and the quote provided in the Response
does not appear in the Secretary’s Order. It also appears that Petitioner is incorrect
that discretionary review was extended to H-2B BALCA cases through rulemaking.
After enacting new regulations in 2020 that gave the Secretary the power to
undertake discretionary review of BALCA decisions in the H-2A and other
contexts,18F
19 the Department proposed rules in 2021 that would have extended the
same discretionary review procedures to BALCA decisions in the H-2B context as
well.19F
20 However, the Department withdrew the proposed rules without
implementing them.20F
21 In any event, even if there is a discretionary review
16 	Response at 2 (stating “the Secretary of Labor has retained discretionary authority
to review BALCA decisions under Secretary’s Order 01-2020, and DOL regulations and
practices support construing Petitioner’s filing as a request for such review.”).
17 	Id.
18 	Id.
19 	Discretionary Review by the Secretary, 85 Fed. Reg. 13024 (Mar. 6, 2020) (proposing
a Direct Final Rule for discretionary review); Discretionary Review by the Secretary, 85
Fed. Reg. 13086 (Mar. 6, 2020) (providing a Notice of Proposed Rulemaking to run
simultaneously with the Direct Final Rule for discretionary review); Rules Concerning
Discretionary Review by the Secretary, 85 Fed. Reg. 30608 (May 20, 2020) (issuing a Final
Rule for discretionary review); see also 29 C.F.R. § 18.95. The 2020 rulemaking stated
explicitly that the Department of Labor and the Department of Homeland Security decided
they would subsequently issue a separate rule for discretionary review of H-2B cases.
Discretionary Review by the Secretary, 85 Fed. Reg. at 13026.
20 	Discretionary Review by the Secretary of Labor, 86 Fed. Reg. 1 (Jan. 4, 2021)
(proposing a Direct Final Rule for discretionary review in H-2B cases); Discretionary
Review by the Secretary of Labor, 86 Fed. Reg. 29 (Jan. 4, 2021) (providing a Notice of
Proposed Rulemaking to run simultaneously with the Direct Final Rule for discretionary
review in H-2B cases).
21 	Discretionary Review by the Secretary of Labor, 86 Fed. Reg. 7927 (Feb. 3, 2021)
(withdrawing the Direct Final Rule for discretionary review in H-2B cases).

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mechanism for the Secretary in this case, the Board has no role in that mechanism
and has no power or authority to direct this matter to the Secretary for review.21F
22
C ONCLUSION
For the foregoing reasons, we DISMISS this case.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge
22 	Petitioner similarly asks the Board to dismiss this case “without prejudice” if it
determines that “it lacks jurisdiction and declines to refer the matter” to the Secretary,
because “Petitioner filed with the ARB in good faith, and equitable tolling should apply to
preserve the 60-day limitations period for judicial review.” Response at 4. Again, the Board
has no jurisdiction here, has no role in any review mechanism of BALCA cases, and will not
opine, directly or indirectly, on whether Petitioner acted in good faith or whether equitable
tolling should apply.