UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992


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CHAPTER 32 Divisions VII to VIII

UNDULY RESTRICTIVE JOB REQUIREMENTS/ BUSINESS NECESSITY

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Continue to Chapter 32 Divisions IX to X .
TABLE OF CONTENTS

VII. Combination of duties

VIII. Live-in requirements

VII. Combination of duties

A. The regulation

Under 20 C.F.R. § 656.21(b)(2)(ii), a combination of duties is presumed to be an unduly restrictive requirement. The presumption may be overcome if the employer demonstrates that:

  • (1) it normally employs workers to perform that combination of duties;

  • (2) workers customarily perform that combination of duties in the area of intended employment; or

  • (3) the combination of duties is based on a business necessity.

B. Identification of combination of duties by CO

The CO must look to the correct DOT job title (if there is one) to ascertain a position's customary duties. LDS Hospital , 87-INA-558 (Apr. 11, 1989).

If an employer's job description lists duties do not appear in any single DOT job description, then the petitioned position requires a combination of duties. H. Stern Jewelers, Inc. , 88-INA-421 (May 23, 1990).

If the required duties do appear under a single DOT job heading, or are related to or consistent with the job duties in the DOT, then the duties do not constitute a combination of duties for which customariness or business necessity must be established. Robert L. Lippert Theatres , 88-INA-433 (May 30, 1990) ( en banc ); Alan Bergman Photography , 88-INA-404 (Sept. 28, 1989); Alywa Computer Corp. , 88-INA-218 (Sept. 21, 1989); Gulliver Preparatory School , 88-INA-549 (Aug. 17, 1988).

1. Combination of duties required must be clearly identified

The combination of duties required by a job must be clearly identified. If the precise combination of duties required is unclear, despite an employer's good faith attempt to respond to the CO's requests for clarification, the matter may be remanded for further clarification by the employer. Unibanco , 88-INA-561 (May 30, 1990) ( en banc ).

C. Employer bears the burden of establishing the customary duties for an occupation

If a combination of duties is required, the employer bears the burden of establishing that the combination is customarily required for an occupation. See generally , discussion of employer's burden of proof at Chapter 7 (Burden of Proof).

If the duties are technical, the employer's burden may be more difficult to meet, since the employer must explain to non-experts why a specific combination of duties is customary. Bakst International , 89-INA-265 (Mar. 14, 1991) (remanded for the employer to provide further evidence that a combination of computer hardware and software duties are customarily required, where the CO applied overly restrictive business necessity test and the employer made good faith effort to present evidence).

1. Establishing customariness precludes requirement of establishing business necessity

If an employer establishes that it normally employs workers with the required combination of duties or that workers customarily perform the combination of duties in the area of intended employment, it need not establish the business necessity of the combination. Van Boerum & Frank Associates, Inc. , 88-INA-156 (Dec. 5, 1989).

D. Employer bears the burden of establishing the business necessity of a combination of duties

An employer may not be able to, or may not try to, establish that a combination of duties is customary. In that event, the employer bears the burden of establishing the business necessity of the combination. Failure to prove the business necessity will result in the affirmation of the denial of labor certification. H. Stern Jewelers, Inc. , 88-INA-421 (May 23, 1990).

1. Business necessity standard for a combination of duties

The Board announced the standard of business necessity for a combination of duties in Robert L. Lippert Theatres , 88-INA-433 (May 30, 1990) ( en banc ):

  • An employer must document that it is necessary to have one worker to perform the combination of duties, in the context of the employer's business, including a showing of such a level of impracticability as to make the employment of two workers infeasible. Implicit in this holding is a showing by the employer that reasonable alternatives such as part-time workers, new equipment and company reorganization are infeasible. A showing that the duties are essential to perform each other also helps to show business necessity, although such a showing is not necessary.

Note that the business necessity standard established in Information Industries , discussed supra Division V, B, does not apply to job duties.

2. Mere assertion is not sufficient to show business necessity

a. Assertion of convenience or practicality

An assertion of convenience or practicality is not enough to establish the business necessity of a combination of duties. Robert L. Lippert Theatres , 88-INA-433 (May 30, 1990) ( en banc ); Jaclyn, Inc. , 90-INA-210, 91-INA-342 (Oct. 31, 1991) (security officers' duties combined with duty to conduct background investigations).

  • In Robert L. Lippert Theatres , 88-INA-433 (May 30, 1990) ( en banc ), the employer, a drive-in movie theater and flea market complex, sought to hire an accountant/film projectionist. The employer argued that the employee could perform accounting duties once the films are set in motion. The Board found that a mere assertion of convenience, with no consideration of possible alternatives, does not meet the business necessity standard for a combination of duties.

b. Assertion regarding size of business

An assertion that the employer's scale of operation is insufficient to justify hiring both a cost accountant and a manufacturing supervisor, is insufficient to establish a business necessity. Steritech Group, Inc. , 89-INA-18 (June 18, 1990) (assertion not supported by discussion of availability of alternatives).

c. Assertion regarding financial savings

An assertion that a combination of duties would produce financial savings for the employer does not establish business necessity. Chinese Community Center, Inc. , 90-INA-99 (June 4, 1991).

3. Reasonable, specific argument of business necessity may be persuasive

A reasonable and specific assertion that a combination of duties is supported by a business necessity may be persuasive. See Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ), discussed in Chapter 11 (Evidence).

  • The employer in Clifton Warner and Associates , 90-INA-183 (Sept. 9, 1991), showed a business necessity for the combination of "marketing and development" and "budgeting and accounting" duties. The employer asserted that this was an untested venture into a new foreign market by a fledgling operation; that the accounting and budgeting duties were related only to this new venture; and that the employer was in a position to hire only one person to do the job. The panel considered this to be a reasonable, specific showing, constituting documentation under Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ).

4. Evidence of narrow tailoring may undercut argument of business necessity

Evidence that an employer narrowly tailored job duties to the alien's combination of qualifications may undercut the employer's argument of business necessity. See Chinese Community Center, Inc. , 90-INA-99 (June 4, 1991) (unusual nature of the combination of administrative and manual labor duties for the position of Assistant to Executive Secretary suggested narrow tailoring). Cf . Snowbird Development Co. , 87-INA-546 (Dec. 20, 1988) ( en banc ) (unusual combination of duties indicates that the requirements may have been tailored to alien's qualifications and abilities).

E. CO must consider employer's rebuttal evidence and arguments

Section 656.25(g)(2) requires a CO to state reasons for rejecting an employer's rebuttal. See Chapter 12, II, E (Final Determination). The panels in Clifton Warner and Associates , 90-INA-183 (Sept. 9, 1991), and Advanced Micro Devices, Inc. , 89-INA-306 (Dec. 12, 1990), were persuaded to grant certification in part by the CO's failure to explain its rejection of the employer's specific assertions of business necessity.

  • The employer in Advanced Micro Devices, Inc. , 89-INA-306 (Dec. 12, 1990), a product developer, made a prima facie showing of the business necessity for the combination of duties of Applications Software Analyst, Management Analyst and Production Software Analyst. The CO gave no reason for rejecting the employer's explanation.

F. Failure to prove customariness or business necessity results in denial of certification

Certification will be denied if the employer fails to establish either the customariness or the business necessity of a combination of duties. For example,

  • In CPI Machinery Co., Inc. , 88-INA-176 (Aug. 7, 1989), the combination of CNC Programmer and Liaison with Korean Subcontractors was deemed unduly restrictive, because the employer failed to establish that the combination was customary for this or other employers or that it was supported by a business necessity. In fact, the employer's rebuttal was unresponsive to the NOF. The employer maintained that the combination was necessary to facilitate the employer's expansion into the Korean market; however, the Form ETA 750A indicated that the employer was already operating in Korea without the services of an employee capable of performing the combined duties.

  • In Wang Westland Industrial Corp. , 88-INA-27 (Mar. 3, 1989) ( en banc ), the employer failed to document its allegation that it could not afford to hire two workers for the various duties. Its response to the NOF was unexplained and unsupported.

  • See also cases discussed supra Division VII, C and D.

G. Scope of rules regarding combination of duties

A requirement that an applicant have "knowledge" of both engineering and management is not the same as a com- bination of those duties, and thus is not unduly restrictive under 20 C.F.R. § 656.21(b)(2)(ii). Baretta & Associates , 88-INA-355 (Sept. 28, 1989).

VIII. Live-in requirements

A. The regulation

Pursuant to 20 C.F.R. § 656.21(b)(2)(iii), in instances where a worker is required to live on the employer's premises, the requirement will be deemed unduly restrictive unless the employer adequately documents that the it arises from a business necessity.

B. Business necessity standard ( Graham test)

The Board's first full exposition of the business necessity of a live-on-the-premises requirement was in Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (originally issued without service sheet on Feb. 2, 1990), a case involving a live-in domestic service worker. The Board held that:

  • To establish the business necessity for a live-on-the-premises requirement, the employer must demonstrate that the requirement is essential to perform, in a reasonable manner, the job duties as described by the employer.

The relevant business for purposes of applying the business necessity test is the "business" of running a household or managing one's personal affairs. Id.

Pertinent factors in determining whether the live-in requirement is essential to the reasonable performance of the job duties include the employer's occupation or commercial activities outside the home, the circumstances of the household itself, and any extenuating circumstances. Id.

C. Evidentiary and procedural matters, generally

1. Statements by the employer as evidence

In Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (originally issued without service sheet on Feb. 2, 1990), the Board set a rigorous standard for establishing the business necessity of a live-in requirement through an interpretation of the central Board decision on documentation, Gencorp , 87-INA-659 (Jan. 13, 1988) ( en banc ). In Gencorp it was held that written assertions that are reasonably specific and indicate their sources or bases are documentation which must be considered by the CO in making a determination and must given the weight they rationally deserve.

In Graham the Board stated that when applying the business necessity test in a live-in domestic situation, in order for written assertions to be considered documentation, they generally should be specific enough to enable the CO to determine whether there are cost-effective alternatives to a live-in requirement and whether the needs of the household for a live-in worker are genuine. If one of the reasons proffered for the live-in requirement is absences of the employer from the home, the assertions should specify the length and frequency of the absences.

An employer's burden of proof is not met merely because an assertion is considered "documentation." Additional documentation (e.g., travel vouchers, written estimates of costs of alternatives such as baby-sitters) is encouraged to bolster written assertions of need. The presence of such documentation influences the weight given to the employer's assertions.

Where the CO makes a reasonable request for specific documentation, a written assertion alone cannot meet the employer's burden: the requested documentation must be provided. See infra Division VIII, C, 3.

2. Statements by counsel as evidence

Statements by an employer's attorney in regard to business necessity do not constitute evidence. Dr. Sayedur Rahman , 88-INA-112 (Mar. 20, 1990).

  • See Chapter 11, II (Evidence) for a general discussion of the weight to be accorded statements by counsel.

3. CO's request for specific documentation

Where the CO requests specific documentation to establish a business necessity for a live-in requirement, and the documentation is readily available to the employer, but is not provided, the CO may properly deny certification. A general assertion by the employer in response to a specific documentation request is insufficient by itself to fulfill the employer's obligation to supply the requested documentation.

  • See , e.g. , Grace Lu , 90-INA-590 (Apr. 30, 1991) (work schedule not provided); Cynthia Bartky , 90-INA-440 (May 9, 1991); Ralph & Freida Mansour , 89-INA-98 (Aug. 22, 1990); Vernon Taylor, Jr. , 89-INA-19 (July 30, 1990); Mr. & Mrs. John Werth , 88-INA-518 (Mar. 30, 1990); Michael Kaufman , 89-INA-66 (Mar. 6, 1990).

  • John Mangun , 88-INA-389 (Feb. 21, 1990). The CO requested submission of additional evidence to support the vague, nondescriptive evidence submitted by the employer. Without supporting documentation, an employer's assertions need only be considered and weighed, not accepted as true or accurate.

Where, however, the CO does not request any specific form of documentation and there is no controlling regulation requiring any certain form of documentation, a written assertion setting forth a detailed justification for a live-in requirement may be considered documentation that the CO must evaluate. Mrs. Mary Burrows , 88-INA-285 (Apr. 2, 1990).

4. Record for review

a. CO's failure to challenge live-in requirement

Where a CO does not challenge the employer's live-in requirement as being unduly restrictive, the Board will not consider the issue on appeal. Drs. Preisig & Alpern , 90-INA-35 (Oct. 17, 1990).

b. Limitation to record upon which denial by CO was based

Pursuant to § 656.26(b)(4), evidence provided in the request for review, not being part of the record upon which the denial of certification was based, cannot be considered by the Board. See Chapter 26, III, B (Scope of Board Authority, Jurisdiction and Review). For instance, in Mary Stafford , 88-INA-155 (Mar. 12, 1990), the employer asserted for the first time in the request for review that she and her husband lived with the latter's aged parents, while the application indicated that the household consisted only of two adults. The panel refused to consider this assertion and treated the case as one in which the employer had no dependents.

  • See also Cindy Karpeles , 88-INA-228 (June 14, 1990); Ramon and Martha Jimeno , 88-INA-181 (Apr. 11, 1990); Mr. and Mrs. Robinson Rosado , 87-INA-652 (Mar. 21, 1990).

c. Remands to permit amendment of record

In Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (originally issued without service sheet on Feb. 2, 1990), the majority found that the employer's assertions did not constitute documentation, and affirmed the denial of labor certification. The dissent, however, would have remanded to give employer the opportunity to submit additional documentation. Despite the majority's declining to permit the employer to amend its evidentiary submission in a remand, subsequent cases indicate that the Board will remand cases for such an amendment to the record under certain circumstances, including:

ambiguity in the employer's evidence,

Where the employer's statements were unclear about her work demands outside the household and whether both of the employer's aged parents lived with her and what their needs for care were -the NOF being vague on the need for greater specificity -the case was remanded to allow the employer to clarify her statements. Grace Lu , 89-INA-238 (Apr. 30, 1990).

Where the employer's statements regarding business demands established that her job required her to travel weekly, but did not establish how often her absences coincided with those of her husband, the matter was remanded to permit the employer to submit additional documentation of the business necessity of a live-in requirement for a housekeeper/child monitor. Cindy Karpeles , 88-INA-228 (June 14, 1990).

impossibility of submitting documentation during the rebuttal period,

Where the employer's business -antique store that require extensive, irregular hours and trips to purchase stock -was so new that she could not furnish documentation of business activities by the rebuttal deadline, the case was remanded to permit her to submit up-to-date evidence of her business activities. Phyllis Leon , 88-INA-85 (Mar. 27, 1990).

a change in circumstances occurring after issuance of the FD,

Mr. and Mrs. Alistair Jessiman , 90-INA-249 (June 26, 1991) (in 3-1/2 years since application was filed, it appeared that Mr. Jessiman's overseas employment may have ended, Mrs. Jessiman's schedule may have changed, and their children would have grown older and may now be in school).

Where the employer alleged a drastic change in the circumstances of his household subsequent to the FD, specifically the death of his married son, the Board remanded the case for the submission of further information by the employer to the CO. Artur Rodrigues , 88-INA-157 (Mar. 21, 1990).

inadequate notice by the CO of the employer's burden of proof, and

Where the CO improperly stated the burden as the "undermining" of the employer's business outside of the house rather than the business of running the household, the panel remanded the case. Since the CO also requested irrelevant documentation concerning the child care responsibilities, the employers were not given the opportunity to document that the live-in requirement was essential to perform the job of housekeeper where the employer's entertainment schedule was extensive and unpredictable. Documentation relating to the employers' business, its entertainment responsibilities or any other aspects of running the household would be relevant for the CO to request. Henry and Clarisse Arnhold , 89-INA-192 (Sept. 12, 1990).

In a case docketed prior the Board's decision in Marion Graham , a split panel remanded a case to give the employer a further opportunity to document the business necessity for a live-in household worker as the rebuttal evidence called for by the CO was too limited to satisfy the employer's burden under Graham . Gene Pressman , 89-INA-272 (June 20, 1990).

inadequate response by the CO to the employer's rebuttal documentation.

See infra Division VIII, C, 5.

d. Remand to permit amendment to application

The Board has also remanded live-in cases to permit an amendment to the application. For example, limiting its holding to the particular circumstances of the case, the panel in Elaine Davidson & William L. Davidson , 88-INA-278 (Mar. 20, 1990), held that where business necessity had been established for a live-in home attendant rather than for the petitioned position of live-in domestic, the matter would be remanded to permit amendment of the application.

5. Obligation of CO to address rebuttal

When a CO challenges a live-in requirement, he or she has an obligation to respond to the employer's rebuttal documentation.

  • In Gloria Van Kannon , 89-INA-95 (Aug. 27, 1990), the panel held that the CO did not respond adequately to the employer's allegations of travel commitments.

  • In Elaine Davidson & William L. Davidson , 88-INA-278 (Mar. 20, 1990), where the FD failed to discuss any of the employer's evidence set forth in rebuttal to the CO's finding that the live-in requirement was unduly restrictive, the CO failed to establish a sufficient basis for the denial of certification.

  • In Siegfred Sander , 87-INA-721 (May 31, 1989) ( en banc ) (pre- Graham ), the CO's cursory conclusion that the duties could be performed on a live-out basis, without any explanation, was insufficient and thus the employer's letters established the business necessity.

See generally Chapter 12, II, E (Final Determination) regarding the requirement that the CO address the employer's rebuttal.

6. CO must provide opportunity to readvertise without the restrictive requirement

The CO cannot prohibit the deletion of a restrictive requirement and readvertisement during the rebuttal period.

  • Where the CO failed to provide the employers with the option of deleting the live-in requirement and readvertising, the panel remanded the case. The CO erred by informing the employers that it was against office policy to remove the restrictive requirement prior to the Final Determination. Alan and Jill Sandler , 89-INA-103 (Sept. 13, 1990).

D. Factors supporting business necessity of live-on-the-premises requirement; persuasiveness of evidence

1. Duties that require living on the premises

To establish the business necessity for a live-on-the-premises requirement, the employer must demonstrate that the requirement is essential to perform, in a reasonable manner, the job duties as described by the employer. See supra Division VIII, B. If the duties described can be performed reasonably without an employee living on the premises, business necessity is not established.

  • See David Sutton , 90-INA-470 (Oct. 25, 1991); Renato Danese , 90-INA-236 (July 29, 1991) (duties to care for pets); Peter Castleman , 89-INA-314 (Apr. 1, 1991); Seth and Andrea Abramson , 89-INA-264 (Mar. 12, 1991); Richard Esposito , 89-INA-222 (Feb. 19, 1991); Vernon Taylor , 89-INA-258 (Mar. 12, 1991); Simon O'Shea , 90-INA-74 (Dec. 18, 1990).

a. Cleaning and meal preparation

If the job duties involve only cleaning the house and preparing meals, business necessity for a live-on-the-premises requirement is not established unless it is shown that such duties could not be successfully performed by a live-out worker. In some cases, an employee's schedule need not coincide with an employer's schedule to allow the reasonable performance of duties.

b. Home entertainment

Frequent home entertainment must be documented and logically relate to the job's duties and requirements to justify a live-in requirement. For example, employers have failed to establish business necessity based on the need for an employee to assist in home entertainment in cases where:

its assertions lacked specificity,

In Rita & Leonard Messinger , 88-INA-22 (Feb. 21, 1990), assertions of frequent home entertainment were found to be inadequately documented and conclusory.

the record failed to indicate that guests arrived unexpectedly,

In Roberto Rodriguez & Sol Rodriguez , 88-INA-345 (Mar. 20, 1990), the panel concluded that the employers' evidence of one day of entertaining guests during the holiday season does not establish that a live-in requirement is reasonably necessary for the performance of the duties of a housekeeper. The record failed to indicate that guests arrived unexpectedly, or to account for any other visits by guests.

The panel in Cecil G. Stellyes , 89-INA-130 (Apr. 3, 1990), rejected the employer's argument that a live-in requirement was justified by the accepted business conduct of the region requiring entertainment of business associates at home with little advance notice and by the need to prepare meals and attend to the needs of the unexpected guests of two adult children who live in the employer's house. Recognizing that such allegations might be difficult to document, the panel nevertheless faulted the employer for failing to make any attempt to verify a parade of unexpected house guests. Further, the assertion of a social norm of entertainment could not be accepted at face value.

(because advance scheduling indicates that reasonable alternative may exist),

Eva Cooperman , 88-INA-113 (Apr. 18, 1990) (dicta; certification was granted because the CO did not raise this issue).

the record did not establish the frequency of home entertainment,

Fernando Jorge , 89-INA-94 (June 12, 1990).

the employers appeared to be away from the home so frequently that they would not be home to entertain,

Fernando Jorge , 89-INA-94 (June 12, 1990).

and the employee's duty hours did not coincide with the times when guests were purportedly entertained at the employer home.

Fernando Jorge , 89-INA-94 (June 12, 1990) (the employer stated that he returns from work each day at 8:00 p.m., but the housekeeper's shift ended at 7:30 p.m.; the employer stated that he frequently brings business guests home for lunch, but the housekeeper was off duty from 11:30 a.m. to 2:30 p.m.).

The mere assertion of a social norm of entertainment does not justify the business necessity of a live-on-the-premises requirement.

  • Cecil G. Stellyes , 89-INA-130 (Apr. 3, 1990) (employer argued that the accepted business conduct of the region required entertainment of business associates at home with little advance notice).

c. Corporate residence

Where the evidence establishes that the employer conducts business meetings at a corporate residence, and circumstances exist that justify a live-on-the-premises requirement, business necessity is established for a housekeeper to reside at the corporate residence. In Hamburger Hamlets, Inc. , 88-INA-106 (May 23, 1990), for example, business necessity was established where the timing and frequency of business visits were shown to be sometimes unpredictable, and on short or no notice, and where the premises included a test kitchen for employer's restaurant enterprise.

In contrast, in Gilman Paper Company , 88-INA-541 (Feb. 27, 1991), the employer failed to show why a worker at the company's "entertainment facility" could be at the worksite during work hours and live elsewhere. The employer's assertion that it is advantageous to have an employee living on the premises failed to address the question of essentiality as opposed to convenience. Finally, the employer's assertions that an employee needed to be on standby were too lacking in specificity given that the employee's only duties were to cook, clean and care for guests.

d. Screening of telephone calls

An employer seeking to justify a live-on-the-premises requirement based on the need to have someone answer the telephone or to screen calls must establish the frequency of the need for such a service,

  • Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (the employer failed to specify the frequency of late-night calls).

and why alternatives such as an answering machine or professional answering service are not viable alternatives.

  • In Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ), the assertion that the live-in requirement was necessary because of a need to screen calls was insufficient because the employer failed to indicate why a professional answering service would not have been adequate.

  • Mary Stafford , 88-INA-155 (Mar. 12, 1990) (an employer's mere assertion that an answering machine is "incapable of communicating with clients" was unpersuasive as to why an answering machine was not a reasonable alternative to the live-in requirement).

Furthermore, answering the telephone must be an important job duty to contribute to a business necessity argument.

  • Mary Stafford , 88-INA-155 (Mar. 12, 1990) (the job duties were "taking care of the entire household along with general housework such as preparing meals, cleaning, washing, ironing clothes, and running errands for food shopping").

e. Need for trustworthy employee

An assertion that a live-in employee is needed because the home has some special characteristic that requires the full-time presence of a trusted employee is relevant, but must be specific to be considered credible. Such an assertion is distinct from an assertion that the employer trusts the alien, which is not relevant.

  • Debbie Borden , 88-INA-226 (Apr. 9, 1990).

f. Home security

An asserted need for home security does not, in itself, establish the business necessity for a live-on-the-premises requirement since there may be other less restrictive methods of protecting a house such as alarms and monitors. The employer must explain why such alternatives are not feasible or effective.

  • Mr. & Mrs. Manuel Llerandi , 89-INA-96 (Aug. 22, 1990) (the employer failed to prove that a security system could not alleviate security concerns).

  • Roberto Rodriguez & Sol Rodriguez , 88-INA-345 (Mar. 20, 1990) (the assertion that a live-in requirement was essential because the employers are concerned about the home and valuables while the family is away is an inadequate justification where the record fails to show why a security system would not satisfy this concern).

  • Mr. & Mrs. Miguel Ficher, 88-INA-153 (Feb. 26, 1990) (the only job duty that could not be performed by a live-out worker was watching the house while employers were traveling, but the employers failed to establish that customary methods of home protection, such as alarms and monitors, were infeasible or ineffective; if one of the reasons proffered for the live-in requirement is absence of the employer from the home, the assertion should specify why it is necessary that the house be occupied in the employer's absence).

oreover, home security does not establish business necessity for a live-on-the-premises requirement where the employee's duties do not include providing security.

  • Mr. and Mrs. Robinson Rosado , 87-INA-652 (Mar. 21, 1990) (although the employers stated that a live-in housekeeper is needed for security reasons, such an assertion was insufficient to establish business necessity for the live-in requirement where they failed to define what security duties the housekeeper would perform and where the job duties listed on the application did not include providing security).

  • See also Gilman Paper Company , 88-INA-541 (Feb. 27, 1991) (the employer's assertions that an employee needed to be on standby were too lacking in specificity given that the employee's only duties were to cook, clean and care for guests).

g. Health care

An assertion that a live-on-the-premises requirement is justified by the need for home health care must be adequately documented. In Emily Korb , 89-INA-92 (July 30, 1990), for example, the employer failed to demonstrate the business necessity for a live-in requirement where she failed to establish a current medical need for the live-in worker. Given that the employer's household consisted solely of two adults who worked full time, the employer failed to document the nature and extent of the positions each adult maintained outside the home to warrant the need for a live-in to perform, in a reasonable manner, the job duties described.

In contrast, in Elaine Davidson and William L. Davidson , 88-INA-278 (Mar. 20, 1990), a live-in requirement for a home attendant was established where thorough documentation, including the statements of two physicians, established that the employers' elderly mother needed round-the-clock care of personal needs and availability in case of emergency.

h. Child care

The need for adult supervision of children does not establish business necessity for a live-on-the-premises requirement where the employer fails to document adequately that the children in fact need supervision

  • Mr. & Mrs. Manuel Llerandi , 89-INA-96 (Aug. 22, 1990) (children aged 18 and 20).

  • Maurice Azoulay , 88-INA-222 (June 20, 1990) (the argument that the alien needs to care for the employer's son is not persuasive where the alien's work hours are 8:00 a.m. to 4:00 p.m., but the child is away from the house from 8:00 a.m. to 3:30 p.m.).

  • Rita & Leonard Messinger , 88-INA-22 (Feb. 21, 1990) (not believable that a healthy 15 year old (now 18) cannot be left alone on occasion).

or that alternatives such as baby-sitting are not viable.

  • Rita & Leonard Messinger , 88-INA-22 (Feb. 21, 1990).

Business necessity may be established, however, if it is established that one or both parents have frequent, unexpected absences from a household including children who need adult supervision.

  • See infra Division VIII, D, 2.

2. Absence from home

Where the job duties justify the need for a live-on-the-premises requirement,

  • See supra Division VIII, D, 1.

  • Conversely, an assertion that the employer is absent from the home is not sufficient by itself to establish business necessity for a live-in requirement; the employer should specify why it is necessary that the house be occupied in the employer's absence. Mr. & Mrs. Miguel Ficher , 88-INA-153 (Feb. 26, 1990).

the persuasiveness of the justification often depends on proof the employer's absence from workplace. Because many live-in cases involve domestic service workers, the workplace is often the employer's home. If the employer fails to document adequately its assertions of frequent travel or absence from the workplace or home, certification will be denied.

  • See, e.g. , Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ); I. Randall Chudnow , 90-INA-386 (Jan. 8, 1992); Jose Vasquez , 90-INA-421 (Jan. 8, 1992); Mr. and Mrs. Elias Ruiz , 90-INA-425 (Dec. 9, 1991); Howard Fine , 90-INA-426 (Nov. 27, 1991); David Perrson , 90-INA-299 (Sept. 10, 1991); Rodman Leas and Lillian Leas , 90-INA-89 (Sept. 9, 1991); Dr. and Mrs. Walter Hoover , 90-INA-88 (July 15, 1991); Jean-Hwa Chang , 90-INA-173 (June 26, 1991); Ralph & Freida Mansour , 89-INA-98 (Aug. 28, 1990); Maurice Azoulay , 88-INA-222 (June 20, 1990); Capitolina Soares , 89-INA-79 (Apr. 12, 1990); Ramon and Martha Jimeno , 88-INA-181 (Apr. 11, 1990); Debbie Borden , 88-INA-226 (Apr. 9, 1990); Mr. & Mrs. John Werth , 88-INA-518 (Mar. 30, 1990); Wha Kue Lam , 88-INA-542 (Mar. 30, 1990); Dr. Sayedur Rahman , 88-INA-112 (Mar. 20, 1990); Roberto Rodriguez & Sol Rodriguez , 88-INA-345 (Mar. 20, 1990); Michael Kaufman , 89-INA-66 (Mar. 6, 1990); Kenneth Schur , 88-INA-15 (Feb. 23, 1990); Rita & Leonard Messinger , 88-INA-22 (Feb. 21, 1990); John Mangun , 88-INA-389 (Feb. 21, 1990); Zvi Rosenberg , 87-INA-653 (Feb. 13, 1990).

In particular cases, for example, business necessity was not established where the employer's evidence:

lacked any degree of specificity regarding the asserted absences,

Elizabeth Conner , 89-INA-300 (Mar. 18, 1991) (a conclusory statement that all adults in the household worked or went to school was insufficient documentation).

Rita & Leonard Messinger , 88-INA-22 (Feb. 21, 1990) (assertions were inadequately documented and conclusory; no elaboration of assertions of constant travel).

John Mangun , 88-INA-389 (Feb. 21, 1990) (conclusory statements by the husband's and wife's respective employers which merely reiterated general claims of professional demands were inadequate).

failed to establish the simultaneous absence of both husband and wife,

Ann Gordon , 89-INA-186 (Apr. 12, 1990) (the employer failed to establish that she and her husband were simultaneously absent from the home for extended periods; if the parents travel at separate times, the non-traveling parent is able to care for the children, and the element of essentiality is missing).

Zvi Rosenberg , 87-INA-653 (Feb. 13, 1990) (the employer asserted that as general manager of a corporation, he must "travel a few times during the week," and that his wife must accompany him on these occasions to care for his health; no independent documentation was supplied to establish the frequency of out-of-town travel, the nature of employer's health problem or why his wife's presence was reasonably related to health care).

To the same effect Rita & Leonard Messinger , 88-INA-22 (Feb. 21, 1990); John Mangun , 88-INA-389 (Feb. 21, 1990).

showed that the absences could be predicted in advance,

Mr. Sayedur Rahman , 88-INA-112 (Mar. 20, 1990) (business necessity for a live-in requirement is not established where the only documentation of the employer's wife's absence from the home showed that she attended business meetings which were scheduled in advance).

or failed to indicate absences justifying a live-in requirement for the entire year.

Maurice Azoulay , 88-INA-222 (June 20, 1990) (the argument that a live-in employee is needed to care for the child during the employer's yearly vacation does not justify a live-in requirement for the remaining 48-50 weeks).

Where, however, the employer adequately documents frequent or unpredictable absences from home, and circumstances at home which require someone's presence, business necessity for a live-in requirement is established. For example, in particular cases the employer established business necessity for a live-on-the-premises requirement where the employer's assertions were:

detailed and credible,

Mrs. Mary Burrows , 88-INA-285 (Apr. 2, 1990) (the employer submitted a detailed letter showing that she and her husband were absent because of work when their children were at home; both had to travel at the same time; children were young).

established that social contact with spouses was expected in dealing with business clients,

Eva Cooperman , 88-INA-113 (Apr. 18, 1990) (the employer's uncontradicted evidence established that approximately 20-25% of her time was spent away from the home and that her spouse was absent even more frequently; absences required by joint spousal social contact with business clients).

or established frequent, unexpected absences of one or both parents from a household having children needing adult supervision.

Mr. and Mrs. Bhow , 89-INA-338 (Mar. 27, 1991) (the employer showed that his wife was needed on business trips to help watch the merchandise at trade shows).

Michael and Elyse Berzon , 89-INA-125 (July 6, 1990) (due to the irregular work hours of both parents, and their frequent simultaneous out-of-town work-related travel, it was necessary to have someone available to care for the employers' 15-month-old child; the absences of both parents showed a frequency and unpredictability which justified the live-in requirement as a business necessity).

Joyce Tucker , 88-INA-286 (June 20, 1990) (the employer established her absence from home due to her involvement with her fiance's security and investigation business by using time sheets from the business which established that the absences were frequent and unpredictable).

Timothy Carey , 88-INA-179 (Mar. 21, 1990) (letter described the employer's position with pipeline equipment manufacturer and indicated extensive global travel was required; similar documentation showed that Mrs. Carey was required to travel; frequent absence of one or both parents from household, with little or no notice and for uncertain duration, requires as a business necessity that a child monitor live in the household).

3. Difficulty finding live-out worker

A mere assertion that the employer had difficulty finding a live-out worker to perform the tasks does not establish the business necessity for a live-in requirement. Kirsten Kane , 89-INA-91 (June 12, 1990).

E. Applicability of Graham test to requirement of excessive hours, occasional stay-overs or split shifts

The Board has issued varying opinions on whether the business necessity test for a live-in requirement stated in Marion Graham , 88-INA-102 (Mar. 14, 1990) ( en banc ) (originally issued without service sheet on Feb. 2, 1990), or the general business necessity test of Information Industries, Inc. , 88-INA-82 (Feb. 9, 1989) ( en banc ) is the proper test to apply if an employer does not require the employee to live on the premises, but requires excessive hours, occasional stay-overs, or split shifts. For a discussion of those cases see infra Division IX, D.

CONTINUE TO Chapter 32 Divisions IX to X .
RETURN TO Chapter 32 Divisions I to VI .

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