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Aug. 30 — A couple’s attempt to hire a household cook on an H-2B visa fell flat after they weren’t able to prove that their need for the cook was temporary or that the job requirements were germane to the position ( In re Montgomery , DOL ALJ, No. 2016-TLN-00062, 8/29/16 ).
The H-2B visa program applies to low-skilled, temporary workers outside of the agriculture industry. As part of the process for hiring such workers, employers must obtain labor certification from the Department of Labor. The certification ensures that hiring foreign workers won’t displace American workers or adversely affect their wages or working conditions.
Dominka and James Montgomery tried to get certification to hire a household cook for a three-year period beginning in June 2016. The couple said they needed someone to cook while their children were too young to attend school, and because they were too busy working at their businesses. They also claimed the cook must be able to speak Italian so that he or she can learn and prepare “rare specialty Italian and Mediterranean recipes.”
The certifying officer at the DOL denied the Montgomerys’ application. DOL Administrative Law Judge Theresa C. Timlin agreed that the couple didn’t prove that they needed a cook on an H-2B visa, as opposed to a U.S. worker.
After the CO alerted the Montgomerys to potential problems with their application, they changed it to say knowledge of Italian was a preference, not a requirement.
The ALJ, however, said prior administrative decisions have treated preferences the same as requirements. The idea is that if an employer lists unusual preferences or requirements for a job that are different from what employers normally list, it might discourage U.S. workers from applying. And that makes it look like the employer is preferring foreign workers over Americans.
Under the DOL’s O*Net database, knowledge of languages other than English isn't normally required for household cooks, Timlin said. That means the Montgomerys couldn’t require their cook to know Italian without violating H-2B rules.
H-2B visas—which are temporary—are available for up to three years at a time if the employer can show it’s a one-time occurrence. But the Montgomerys didn’t prove that they only would need the cook between June 2016 and June 2019, the ALJ said.
The application therefore was properly denied.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/DOL_ALJ_Decision_In_re_EMPLOYMENT_AND_TRAINING_ADMINISTRATION_DOM.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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