Labor Certification Challenge Based On Lost Email Denied

A company appealed the denial of a sponsorship application, stating an audit notification was lost as it was placed in a spam folder. Upon appeal, the U.S. Department of Labor affirmed the labor certification denial. The company filed to sponsor a foreign worker for permanent employment. However, by not responding to the audit request, they were denied.

The three-judge panel of the Board of Alien Labor Certification Appeals stated the company and its attorney did not overcome what is known as the “mailbox rule”. That rule presumes that a message, properly addressed, is received after being sent. In this situation, the company stated it was not found in a timely manner as it went to a spam folder, thereby acknowledging it was received, just not in the primary mailbox.

The mailbox rule presumption has been previously found to apply to the timing of a message’s delivery. As such, the sender of the message must prove that the communication was mailed or provide proof that the sending of the message followed regular procedures. The office that sent the denial to the company provided proof that the email was sent and used the correct email addresses for all parties to whom the message was sent. As such, the email satisfies the mailbox rule.

For email communications, the same mailbox rule is applied. The rule can be challenged by the recipients if they deny receiving the email or if they provide some evidence that shows they did not passively fail to respond to the message. In this situation, the recipient stated they did receive the message, but that it went into a spam folder. Further, no proof was presented showing that there was a technical issue with receiving the message.

In the previous finding, the decision states clearly that managing and monitoring email sent to a junk folder or filtered by a spam monitor is the responsibility of the recipient. As such, the request for sponsorship was denied.

If you have questions about communications regarding your immigration matter or any other immigration-related issue, contact us at ILBSG.