Mark A Ivener, A Law Corporation

Seventh Circuit Finds Labor Dep’t, Not DHS, Decides Job Requirements

In Hoosier Care, Inc., v. Chertoff, the U.S. Court of Appeals for the Seventh Circuit noted that the DHS’s Administrative Appeals Office (AAO) had ruled that two workers’ college majors were not relevant postsecondary education for prospective positions in a residential care facility for profoundly disabled children and adults, because neither agriculture nor transportation is a field of knowledge that relates to the care of such persons. Relevant majors, the AAO suggested, would include those in such fields as psychology and education. Although the court said that interpretation was not necessarily unreasonable, it noted that the determination of what kind of training is required to classify someone as a “skilled” worker is made by the Department of Labor (DOL), not the DHS, which determines whether the worker satisfies those requirements; that is, whether he or she has the training the DOL believes is required for the job.

The court said it did not know how closely the DOL examines the suitability of the job requirements specified in an employer’s application for labor certification, but that the DHS did not argue that in conducting such an investigation in this case it was simply doing the DOL’s work for it. “If it wants to do that it will have to change its regulation and probably also persuade Congress to change the statute,” the court said, reversing the judgment of the district court and returning the case to the DHS for further proceedings.

The full text of the case is available here.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.