Hoosier Care Inc v. Chertoff, Michael ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3562
HOOSIER CARE, INC.,
Plaintiff-Appellant,
v.
MICHAEL CHERTOFF, Secretary of Homeland Security, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05–2050—Michael P. McCuskey, Chief Judge.
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ARGUED MARCH 28, 2007—DECIDED APRIL 11, 2007
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Before POSNER, ROVNER, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, Hoosier Care,
operates a residential care facility for profoundly disabled
children and adults. Most of these unfortunates have a
mental age of less than 18 months and cannot walk or talk
or perform even the simplest daily living task without
assistance. The plaintiff wanted to hire two Filipinos,
neither an American citizen, to be members of the staff
that takes care of the residents (“Developmental Disability
Specialists”). To obtain immigrant visas for them, the
plaintiff had first to obtain an alien labor certification
2 No. 06-3562
from the Department of Labor. It submitted an application
in which it stated that the minimum education, training,
or experience required for the position was a bachelor’s
degree in any field. One of the two aliens whom it wants to
hire has a bachelor’s degree in agriculture; the other has
one in maritime transportation. Letters filed in support
of the application, written by members of the plaintiff’s
staff and by outside experts, explained that college gradu-
ates, regardless of their major, do better working with the
residents of the plaintiff’s facility than less-well-educated
persons do.
The Department of Labor granted the certification. The
plaintiff had then to petition U.S. Citizenship and Immigra-
tion Services, an agency of the Department of Home-
land Security, to classify the two aliens as eligible for
“employer-based” immigration. DHS rejected the petition
and the plaintiff, Hoosier Care, brought this suit to chal-
lenge the rejection, and lost in the district court.
The appeal requires us to interpret two statutory provi-
sions and two provisions of a regulation promulgated by
DHS. Section 1182(a)(5)(A)(i) of Title 8 forbids an alien’s
entering the United States “for the purpose of performing
skilled or unskilled labor” unless the Department of Labor
certifies that there is a shortage of American workers able
and willing to perform the labor in question and that
allowing an alien to perform it will not harm American
workers. DHS is then responsible for determining
whether, in the case of skilled labor, a specific alien is
“capable . . . of performing skilled labor (requiring at least
2 years training or experience).” 8 U.S.C. § 1153(b)(3)(A)(i).
It is these provisions that create the two-stage procedure
that Hoosier Care followed, striking out at the second
stage.
No. 06-3562 3
DHS interprets these provisions as creating the follow-
ing division of responsibilities between it and the Labor
Department: the Labor Department determines whether
there is a labor shortage that could be alleviated by hiring
aliens without thereby hurting American workers, and
DHS then decides whether the alien should be permitted to
be hired to help meet the shortage. In the case of skilled
labor, DHS’s regulation repeats the statutory definition of
its responsibility (determining whether the alien is “capa-
ble . . . of performing skilled labor (requiring at least 2
years training or experience)”) but adds that “relevant
post-secondary education may be considered as training
for purposes of this provision.” 8 C.F.R. § 204.5(l)(2). In the
case at hand, DHS’s Administrative Appeals Office ruled
that the aliens’ college majors were not “relevant” post-
secondary education because neither agriculture nor
transportation is a field of knowledge that relates to the
care of severely retarded persons. “Relevant,” the Office
suggested, would be majors in such fields as psychology
and education (in which event two years of college
would suffice, not the four ordinarily required to obtain
a bachelor’s degree).
We cannot say that this interpretation of “relevant post-
secondary education” is unreasonable, and ordinarily
that would be the end of our inquiry. But there is more to
the regulation than the subsection we’ve quoted. A sub-
section not cited by DHS, entitled “differentiating between
skilled and other workers,” states that “the determina-
tion of whether a worker is a skilled or other worker will
be based on the requirements of training and/or experi-
ence placed on the job by the prospective employer, as
certified by the Department of Labor.” 8 C.F.R. § 204.5(l)(4).
In other words, the determination of what kind of training
4 No. 06-3562
is required to classify an alien as a “skilled” worker is
made by the Labor Department upon consideration of the
submission by the alien’s prospective employer. That
department certifies the requirements for a job and
the Department of Homeland Security then determines
whether the alien whom the employer wants to hire
satisfies those requirements—that is, whether he has the
training that the Department of Labor believes is re-
quired for the job. Thus, that department determines
whether a college education regardless of major qualifies
an alien as a skilled worker for Hoosier Care (that is,
whether such an education is “relevant post-secondary
education” within the meaning of subsection (l)(2)), and
DHS then determines whether in fact each of the two aliens
whom Hoosier Care wants to hire has a bachelor’s degree.
This understanding of the respective responsibilities of
the two departments is supported by the processing of
Hoosier Care’s application to the Department of Labor.
The application lists among the requirements for the job
a bachelor’s degree in any field. By granting the applica-
tion and issuing the certification, the department accepted,
presumably after reviewing the application, Hoosier Care’s
specification of requirements for the job. Suppose the job
had been raking leaves and the application had listed as a
requirement that the employee have a bachelor’s degree
in religious studies, because the employer knew that no
American with such a degree would apply for such a job
but that unemployed college graduates in Somalia who had
majored in religious studies would. Or suppose Hoosier
Care had specified that only applicants for employment
who speak Tagalog (one of the major languages of the
Philippines) would be considered for the job. In both these
hypothetical cases the employer would have gerryman-
No. 06-3562 5
dered the requirements of the job in order to ensure that
no Americans would apply, so that he could hire an alien
at a lower wage instead. The Department of Labor, unless
asleep at the switch, would not approve such an applica-
tion. This is apparent from the instructions that it gives
employers for preparing applications for alien labor
certifications. The instructions state: “Job requirements
must adhere to what is customarily required for the
occupation in the U.S. and may not be tailored to the worker’s
qualifications. In addition, the employer shall document
that the job opportunity has been and is being described
without unduly restrictive job requirements, unless adequately
documented as arising from business necessity.” U.S.
Dept. of Labor, Employment & Training Administra-
tion, “Permanent Labor Certification,” Mar. 7, 2007,
www.foreignlaborcert.doleta.gov/perm.cfm (visited Mar.
28, 2007) (emphasis added). “Tailored” or “unduly re-
stricted” job requirements would be requirements designed
to limit the applicant pool to aliens. There is no sugges-
tion of such monkeyshines here.
Hoosier Care cited subsection (l)(4) of the regulation and
pointed out that it imposes on the Labor Department,
not the Department of Homeland Security, the duty of
determining “the least restrictive job requirements for
the position” that the employer seeks to fill with an alien
worker. It quoted the passage in Grace Korean United
Methodist Church v. Chertoff, 437 F. Supp. 2d 1174, 1179
(D. Ore. 2005), in which the court explained that the
employer (per (l(4)) establishes “the requirements of
training and/or experience placed on the job by the
prospective employer, as certified by the Department of
Labor,” while DHS “looks to education and experience
requirements in the labor certification to determine
6 No. 06-3562
whether the applicant falls within the skilled worker or
professional classification.” On DHS’s contrary view,
pressed on us in this case, DHS second-guesses the Labor
Department’s evaluation of job requirements. In turning
down Hoosier Care’s application DHS complained that
the applicant hadn’t indicated “what type of degrees the
persons currently filling the position [that the two Filipino
college graduates would fill] possess, or any indicators
of the success of those persons such as evaluations, reten-
tion rates, etc.” That is an inquiry into the training re-
quirements for the positions, which is a matter that the
regulation—DHS’s own regulation—confides to the
Department of Labor.
And not just the regulation—the statute as well. The
Labor Department cannot discharge its statutory responsi-
bility to determine the effect on American workers of
allowing an alien to become a permanent resident of the
United States without making sure that the prospective
employer has not defined the qualifications for the job in
such a way as to exclude American workers for reasons
unrelated to job qualifications, as in our leaf-raking and
Tagalog examples. So what we have described as DHS’s
“delegating” this responsibility to the Department of
Labor in the regulation is actually recognition of the
location of a responsibility implicit in the Labor Depart-
ment’s statutory mandate. In any event, the regulation is
clear and its validity unchallenged.
DHS’s brief does not cite subsection (l)(4). It is apparent
from the cases it does cite that the briefwriter didn’t
understand the difference between the requirements for
a job and whether a given individual satisfies those re-
quirements, and thus the difference between requiring
a bachelor’s degree for a particular type of job and deter-
No. 06-3562 7
mining whether a given individual has a bachelor’s degree.
The cases that DHS cites deal with the latter issue, not
the former. One of them, indeed, expressly rejects DHS’s
position: Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir.
1983), holds that “DOL [the Department of Labor] bears the
authority for setting the content of the labor certifica-
tion and [DHS’s predecessor, the Immigration and Natural-
ization Service] cannot impose job qualifications beyond
those contemplated therein” (emphasis in original)—which
is what DHS did in this case.
Several cases describe the Labor Department’s responsi-
bility in employment-based immigration as limited to
“determining the availability of suitable American workers
for a job and the impact of alien employment upon the
domestic labor market.” K.R.K. Irvine, Inc. v. Landon, 699
F.2d 1006, 1008 (9th Cir. 1983) (per curiam); see also Black
Construction Corp. v. INS, 746 F.2d 503, 504 (9th Cir. 1984)
(per curiam); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman,
736 F.2d 1305, 1309 (9th Cir. 1984). The brief for the Depart-
ment of Homeland Security fastens on this language,
which paraphrases the statute, but misses the force of
“suitable.” Suitable American workers to take care of
residents of Hoosier Care’s facility would not have to have
a degree in religious studies or speak Tagalog, but they
would have to have a bachelor’s degree in any field. So, at
least, the Department of Labor has determined in the
exercise of its responsibility to make sure employers don’t
jigger their job requirements to exclude willing and able
(“suitable”) American workers.
The court in K.R.K Irvine pointed out that the responsi-
bility of the Immigration and Naturalization Service in
regard to employer-based immigration was (and the
responsibility of its successor, the Department of Home-
8 No. 06-3562
land Security, is) limited to “determining if the alien is
qualified for the job.” K.R.K. Irvine, Inc. v. Landon, supra, 699
F.2d at 1008. And Tongatapu Woodcraft Hawaii, Ltd. v.
Feldman, supra, 736 F.2d at 1309, says it’s “whether the alien
is in fact qualified to fill the certified job offer.” Those are
different inquiries from whether the qualifications set
by the employer are proper, which is the responsibility of
the Labor Department.
We do not know how closely the Labor Department
examines the suitability of the job requirements specified
in an employer’s application for an alien labor certifica-
tion. But the Department of Homeland Security does not
argue that in conducting such an investigation in this
case it was simply doing the Labor Department’s work
for it. If it wants to do that it will have to change its regula-
tion and probably also persuade Congress to change the
statute.
The judgment of the district court is reversed and the
matter returned to the Department of Homeland Security
for further proceedings consistent with this opinion.
REVERSED WITH INSTRUCTIONS.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-11-07