Pursuant to § 656.24(b)(3), the CO must determine
whether to grant certification or to issue a NOF on the basis of
whether or not:
The employment of the alien will have an adverse
effect upon the wages and working conditions of U.S. workers
similarly employed. In making this determination the
Certifying Officer shall consider such things as labor
market information, the special circumstances of the
industry, organization, and/or occupation, the prevailing
wage in the area of intended employment, and the prevailing
working conditions, such as hours, in the occupation.
Section 656.21(b)(3) has been cited as a ground for denying
labor certification in only two cases that have been decided by
the Board. In one of those decisions, the panel found that the CO
should have analyzed a restrictive job requirement under
§ 656.21(b)(2) rather than § 656.21(b)(3).
In Stephen & Susan Levine, 90-INA-343 (Oct.
31, 1991), the CO cited § 656.21(b)(3) in denying
certification on the ground that employer's split-shift
requirement for a live-in housekeeper/child monitor is not
customary for the occupation and because the employment of
the alien under such circumstances would adversely affect
the wages and working conditions of U.S. workers similarly
employed. The panel found that the CO had incorrectly cited
§ 656.21(b)(3), and that the matter should have been
analyzed as a business necessity issue under
§ 656.21(b)(2).
The other panel did not find that the CO could not raise an
adverse effect issue to attack a restrictive job requirement, but
remanded the matter because neither the CO nor the employers had
adequately documented their respective positions.
In Dr. William J. Raskoff & Dr. Carol
Tabak, 89-INA-200 (June 21, 1991), the only issue
considered by the CO was whether the employers' requirement
of car ownership by applicants for the position of Child
Monitor would have an adverse effect under
§ 656.24(b)(3). Both the CO and the employers were
found by the panel to have made improper assumptions about
car ownership and not to have adequately documented their
respective positions. The panel remanded the matter,
suggesting that the employers might consider reframing the
job requirement (and that the CO could consider whether such
a reframed requirement was "unduly restrictive"),
but stating that if the employers continued to require car
ownership the CO could raise the adverse effect issue
provided that he documented that position.
The regulations at § 656.24(b)(3) require the CO to
consider special circumstances of the occupation when making an
"adverse effect" determination. Because the
determination is ultimately whether employment of the alien will
have an adverse effect on the wages and working conditions of
U.S. workers similarly employed, special circumstances of the
occupation can include consideration of the individual needs of
an employer. However, the existence of a special circumstance is
only one element for consideration: the mere existence of a
special circumstance does not guarantee that employment of the
alien will not be found to have an adverse effect. Also
considered under § 656.24(b)(3) are factors such as labor
market information, the prevailing wage and working conditions,
and any other special circumstance of the industry, organization
or occupation.
Dr. William J. Raskoff & Dr. Carol Tabak,
89-INA-200 (June 21, 1991). The employers argued that their
need to have an employee who can report to the job quickly
and reliably in the event of an emergency was a special
circumstance of the occupation that justified the job
requirement that an applicant for the position of Child
Monitor own a car. The matter was remanded because of poor
development of the record by both the CO and the
employers.