From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
To contact the reporter on this story: Laura D. Francis in Washington at email@example.com
To contact the editor responsible for this story: Tony Harris at firstname.lastname@example.org
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.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)