Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 2 -- SUPPLEMENT

Supplement current through January 1997

ADVERSE EFFECT ON WAGES AND WORKING CONDITIONS

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TABLE OF CONTENTS

I. Regulatory provision

II. Appropriateness of citation; restrictive job requirement

III. Meaning of "special circumstances"

I. Regulatory provision

no new casenotes

II. Appropriateness of citation; restrictive job requirement

The CO's summary conclusion that a split-shift requirement will have an adverse impact on the wages and working conditions of U.S. workers pursuant to 20 C.F.R. §656.21(b)(3) is insufficient to support a denial of labor certification. Rather, "the CO must state specific grounds for believing that certification would have an adverse impact on wages or working conditions of U.S. workers similarly employed, and must specify what the adverse impact would be." Henry T.H. Hsu , 91-INA-156 (Apr. 13, 1992); Ronald & Terry Allen , 90-INA-308 (Apr. 13, 1992). See also Mrs. Beverly Abdo , 90-INA-578 (May 14, 1992).

One panel has held that "there is no per se bar to a split-shift arrangement". As a result, it remanded a case where the CO concluded that the requirement had an adverse impact on wages and working conditions and required that Employer delete the requirement without providing an opportunity to establish business necessity for the split-shift. Consequently, Employer did not attempt to justify the requirement in its rebuttal. The panel directed that the CO "clearly enunciate his standard for review and allow Employer to submit relevant evidence before determining whether Employer has established business necessity for the requirement under the standard enunciated in Marion Graham , 88-INA-102 (Feb. 2, 1990)". Hossein Rostam , 91-INA-185 (May 21, 1985) (Judge Brenner dissented to state that, while he agreed that a split-shift requirement is not a per se bar to labor certification, he did not agree to remand the case because it would permit the CO to raise the new issue of business necessity. Judge Brenner would have reversed the denial of labor certification notwithstanding the fact that there was no evidence of business necessity on rebuttal). See also Madeline Wolf , 90-INA-323 (Dec. 9, 1992) (holding that the CO's assertion that a split-shift is not customary for the occupation is conclusory and did not properly apprise Employer of its burden on rebuttal).

In three cases emanating from California, the CO denied labor certification to state that a driver's license and/or vehicle ownership requirement(s) has an adverse impact on wages and working conditions as California State law requires that an individual have insurance coverage prior to obtaining a license. The panel concluded, to the contrary, that the California Vehicle Code does not require proof of insurance coverage prior to obtaining a driver's license and reversed the CO's denials in Waltraud Ramzolin , 90-INA-504 (Oct. 2, 1991) and Mr. & Mrs. Gary Post , 90-INA-579 (Oct. 1, 1992) on this ground. See also William & Lisa Curtis , 91-INA-152 (July 22, 1993). In Thomas G. Hahn , 91-INA-36 (Oct. 1, 1992), the panel remanded the case to permit re-advertisement where the CO issued an unclear NOF and ignored the employer's offer to delete its vehicle ownership requirement.

III. Meaning of "special circumstances"

Federal wage schedule limiting VA hospital to offering Anesthesiologists a salary 20% lower than prevailing wage is not a "special circumstance" that the CO takes into consideration when determining whether granting certification will have an "adverse impact" on wages or working conditions. (20 C.F.R. § 656.24(b)(3)). Hunter Holmes McGuire Veterans Affairs Medical Center , 94-INA-210 (Oct. 7, 1996).