UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION
APPEALS
Judges' Benchbook
Second Edition - May 1992
CHAPTER 2
ADVERSE EFFECT ON WAGES AND WORKING CONDITIONS
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TABLE OF CONTENTS
II. Appropriateness of citation; restrictive job requirement
III. Meaning of "special circumstances"
Pursuant to § 656.24(b)(3), the CO must determine whether to grant certification or to issue a NOF on the basis of whether or not:
- The employment of the alien will have an adverse effect upon the wages and working conditions of U.S. workers similarly employed. In making this determination the Certifying Officer shall consider such things as labor market information, the special circumstances of the industry, organization, and/or occupation, the prevailing wage in the area of intended employment, and the prevailing working conditions, such as hours, in the occupation.
II. Appropriateness of citation; restrictive job requirement
Section 656.21(b)(3) has been cited as a ground for denying labor certification in only two cases that have been decided by the Board. In one of those decisions, the panel found that the CO should have analyzed a restrictive job requirement under § 656.21(b)(2) rather than § 656.21(b)(3).
- In Stephen & Susan Levine , 90-INA-343 (Oct. 31, 1991), the CO cited § 656.21(b)(3) in denying certification on the ground that employer's split-shift requirement for a live-in housekeeper/child monitor is not customary for the occupation and because the employment of the alien under such circumstances would adversely affect the wages and working conditions of U.S. workers similarly employed. The panel found that the CO had incorrectly cited § 656.21(b)(3), and that the matter should have been analyzed as a business necessity issue under § 656.21(b)(2).
The other panel did not find that the CO could not raise an adverse effect issue to attack a restrictive job requirement, but remanded the matter because neither the CO nor the employers had adequately documented their respective positions.
- In Dr. William J. Raskoff & Dr. Carol Tabak , 89-INA-200 (June 21, 1991), the only issue considered by the CO was whether the employers' requirement of car ownership by applicants for the position of Child Monitor would have an adverse effect under § 656.24(b)(3). Both the CO and the employers were found by the panel to have made improper assumptions about car ownership and not to have adequately documented their respective positions. The panel remanded the matter, suggesting that the employers might consider reframing the job requirement (and that the CO could consider whether such a reframed requirement was "unduly restrictive"), but stating that if the employers continued to require car ownership the CO could raise the adverse effect issue provided that he documented that position.
III. Meaning of "special circumstances"
The regulations at § 656.24(b)(3) require the CO to consider special circumstances of the occupation when making an "adverse effect" determination. Because the determination is ultimately whether employment of the alien will have an adverse effect on the wages and working conditions of U.S. workers similarly employed, special circumstances of the occupation can include consideration of the individual needs of an employer. However, the existence of a special circumstance is only one element for consideration: the mere existence of a special circumstance does not guarantee that employment of the alien will not be found to have an adverse effect. Also considered under § 656.24(b)(3) are factors such as labor market information, the prevailing wage and working conditions, and any other special circumstance of the industry, organization or occupation.
- Dr. William J. Raskoff & Dr. Carol Tabak , 89-INA-200 (June 21, 1991). The employers argued that their need to have an employee who can report to the job quickly and reliably in the event of an emergency was a special circumstance of the occupation that justified the job requirement that an applicant for the position of Child Monitor own a car. The matter was remanded because of poor development of the record by both the CO and the employers.