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Matter of Kaplan1: Cooking Specialization Requirements for Domestic Cooks held Restrictive
by Joel Stewart, Esq.

On July 2, 2001, the Board of Alien Labor Certification Appeals (Board) issued an important decision en banc regarding three cases under the heading Matter of Kaplan 2, with special requirements for domestic cooks to prepare Kosher, Vegan and Polish cuisine respectively 3.

By way of background, applications for common house workers have diminished in recent years, while numbers have risen for skilled household workers like cooks. Back in 1991, in the Matter of Carlos Uy III 4, the Certifying Officer noted, "…her office has seen a significant decline in applications for unskilled domestic workers and a marked increase for skilled, domestic workers." According to the Dictionary of Occupational Titles, general household workers 5 command an SVP of only "Three" (one to three months of experience) 6 and perform combined duties, like cleaning, baby-sitting and cooking 7. In contrast, household domestic cooks 8 command an SVP of "Six" (one to two years of education, experience or training) 9 and dedicate themselves entirely to cooking.10

As a result of increased scrutiny by Certifying Officers, many applications for household domestic workers have come before the board during the last decade, including child monitors, domestic cooks, household managers and others, and all the while, administrative-judicial jurisprudence has been evolving to impose special evidentiary requirements in these cases, to prove the existence of a bona fide job offer and/or business necessity for specific job requirements and even for the jobs themselves.11 Kaplan is just the latest in this series of cases.

Kaplan and its two companion cases are nearly identical, in that the three Employers argued consistently that they needed experienced cooks to fill full-time positions requiring two-years of training or experience in the specific household cuisine, and that it would be difficult to train someone on the job. Only the type of cuisine differs among them.

At the outset, the Board warned, "we hold that cooking specialization requirements for domestic cooks normally should be analyzed under the business necessity standard of section 656.21(b)(2) prior to their consideration as a factor under the bona fide job opportunity analysis of section 656.20(c)(8)."12

To analyze the specialized cooking requirements of each case, the Board began by applying the trinity of business necessity law: (1) the regulations at Sec. 656.21(b)(2)(i); (2) the two-prong test from Information Industries,13 and (3) the more recent en banc decision, Lucky Horse Fashion, Inc.,14 and quickly arrived at the conclusion that even if the Dictionary of Occupational Titles supports a restrictive requirement, the Employer must show business necessity.

The Board's conclusion clashes with the DOT that stipulates in the first sentence of the job description for domestic cooks that they may prepare meals "according to recipes or tastes of employer," and in a subsequent phrase, they also "may prepare food for special diets." Despite the DOT standard, the Board found the language too generalized to provide blanket authorization for specialization requirement for domestic cooks. Noting that the DOT is "merely a guideline and should be considered in context rather than simply applied mechanically," the Board stated in conclusory language that the job "of cooking to the tastes or recipes of an employer, in context, is hardly an endorsement for chef specialties," and continued, "The DOT's references to cooking to recipes/tastes/special diets, may or may not involve major or minor job duties in particular case. These references are not enough to energize these duties with the inherent force of full job requirements."15

Although the Board believes that the requirement to cook specialized cuisine is not a major element of a cook's job, it seems hard to imagine a situation where the requirement to cook according to recipes or tastes of the employer, or to prepare food for special diets when required, would not be an essential function or key duty.16 The Board states that a domestic cook would be able to cook a specialized diet within a reasonable period of time by consulting cook books, yet the DOT suggests a training time for a domestic cook of up to two years. Significantly, the Certifying Officer did not provide any guidance to Employers as to what kind of rebuttal information would have been acceptable to justify a special cooking requirement for a domestic cook, even thought the Board has authorized Certifying Officers to require specific kinds of rebuttal evidence to overcome a Notice of Findings.17

In the case of the kosher cook, the Board stated that many fine kosher restaurants exist in Philadelphia and New York, but that traditional dishes such as knishes, bagels, blintzes and matzo ball soup can be prepared in non-kosher restaurants as well. The Board held that the Employer must prove that the household in which the cook will work follows the laws of Kashrut and that the food will be prepared in strict accordance with Jewish law. The Employer must also establish that it takes two years to learn to cook under the laws of Kashrut. In this regard, the Employer must provide documentation to prove where the alien learned the laws of Kashrut and whether his or her experience was in kosher cooking or cooking traditional non-kosher Jewish foods.

The remaining cuisines, Polish and Vegan, were dispensed with in a very brief discussion. The Board said that the Employer's statement that Polish cuisine requires detailed knowledge of ingredients and traditional recipes was a bare assertion without supporting reasoning or evidence, and therefore does not prove that an experienced domestic cook could not adapt to cook that type of cuisine within a reasonable period of taking the job. Similarly, the need for a vegetarian cook was not substantiated by documentation, and the Employer's rebuttal did not state why it would take two years to learn to cook Vegan dishes .18 Of course, some dishes may take longer, like Chinese thousand year-old eggs.19

The Board then discussed the issue of bona fide job opportunity. Prior to the decision in Carlos Uy III,20 it was customary for Certifying Officers to challenge job offers in terms of business necessity, and not in terms of the regulations regarding a bona fide job requirement. In Carlos Uy III, the Board held that the proper test for a bona fide job offer was the "totality of the circumstances," taking into consideration a number of factors, including the annual income of the Employer.21 Logically the two issues are entirely separate, and indeed, the decision in Carlos Uy III, seemed to have separated definitively the issue of business necessity and the bona fide job requirement.

Unfortunately, in Kaplan, the Board has now reverted back to linking and confusing the two issues. First, in Ablack the Board stated that the employer had successfully documented the requirements of section 656.20©(8), the bona fide job issue, and that once having successfully established the existence of the bona fide job offer for a domestic cook to prepare Vegan meals, "the first prong of the business necessity test is established." By this reasoning, the Board ruled that successful documentation of a bona fide job requirement also satisfies the first prong of the business necessity test.

Second, the Board suggested the opposite would also be true, i.e., a successful business necessity argument would be a strong factor in support of the bona fides of a domestic cooking position, however, "a failure to establish business necessity would "tend to suggest that that Employer's job offer is not bona fide." The Board did not provide any explanation to support its contention that a successful business necessity argument would substantiate the existence of a bona fide job offer, or that a successful argument for a bona fide job offer would substantiate the first prong of the business necessity test.

If not the plain language of the Dictionary of Occupational Titles, then common sense dictates that the Employer's stated job requirements should be accepted prima facie, including a preference for a particular kind of food, especially given the facts that (1) the DOT provisions support the requirement to prepare cuisine according to the Employer's taste or for special dietary requirements, and (2) the SVP requirement permits a range of up to two years to learn to perform the job duties. The DOT purports to base its job descriptions on research performed by field representatives. Perhaps the data unearthed by the researchers who wrote the DOT documented that in a multicultural society most Employers would require their food be cooked to taste.22

There are strong arguments why the DOL should permit advertising that includes a description of the cuisine that the Employer wants. This information seems necessary to place job applicants on notice about the type of job opportunity offered by the employer. Job applicants could then decide whether to apply for the job or not. Employers who state their special requirements to not get a free ride, but would have to document their reasons for accepting or rejecting job applicants only for lawful reasons. If the advertisement can not state the type of cuisine required, the Employer is de facto denied the opportunity to maximize its chances to find a worker that is able, willing and available to cook to taste, and the worker is not permitted to learn which type of cuisine must be prepared until the time of the job interview.

The holding in this case effectively abridges the First Amendment right to free speech by requiring the Employer and Alien to remain silent about the type of food they prefer, and the restriction may be unconstitutional under an important Circuit Court decision, Texas Beef Group et al, v. Oprah Winfrey.23 Without an on-the-record statement regarding the type of cuisine or special diet required by the employer, job applicants are denied the opportunity to know which type of cuisine they will be required to prepare, and the Employer is, in effect, forbidden to utter any type of special cuisine or dietary requirements prior to hiring the job applicant.

The Board's decision seems driven mostly by its strong belief that job offers for domestic cooks are not bona fide. This is discernible in its strongly phrased observation that when broadly defined job duties are described in subjective terms, they can be narrowly defined to impose "insubstantial or outright fraudulent specialization requirements that have been tailored to the alien's qualifications to artificially decrease the pool of qualified U.S. applicants."24

Unfortunately, the Board's holding reduces key job duties, like cooking to employer's taste, to minor ones, and the hapless employer may not discuss dietary preferences with job applicants. Except for kosher cooks, the Board leaves the Employer to speculate what kind of business necessity documentation should be provided. The blending of concepts like bona fide job opportunity and business necessity will provide fertile ground for Notices of Findings that will confuse and confound for years to come.

1 Martin Kaplan, 2000-INA-23 (BALCA, July 2, 2001).

2 Glenda Ablack, 2000-INA-117 (BALCA, July 2, 2001); Adam Bak, 2000-INA-178 (BALCA, July 2, 2001) (en banc).

3 The American Immigration Law Foundation and American Immigration Lawyers Association submitted an amicus curiae brief prepared by Attorneys Kenneth H. Stern and Stephanie Goldsborough of Stern & Elkind, LLP, in Denver, Colorado.

4 Carlos Uy III, 97-INA-304 (BALCA, March 3rd, 1999)(en banc). 90-INA-410 (Jan. 16, 1992).

5 301.474-010 "House worker, General"

6 Jobs labeled SVP 3 fall into the "other worker" category, often backlogged for many years, while jobs commanding SVP 6 belong to the 3rd preference, a category that is rarely backlogged for most countries.

7 Job Description for House worker, General: "Performs any combination of following duties to maintain private home clean and orderly, to cook and serve meals, and to render personal services to family members: Plans meals and purchases foodstuffs and household supplies. Prepares and cooks vegetables, meats, and other foods according to employer's instructions or following own methods. Serves meals and refreshments. Washes dishes and cleans silverware. Oversees activities of children, assisting them in dressing and bathing. Cleans furnishings, floors, and windows, using vacuum cleaner, mops, broom, cloths, and cleaning solutions. Changes linens and makes beds. Washes linens and other garments by hand or machine, and mends and irons clothing, linens, and other household articles, using hand iron or electric ironer. Answers telephone and doorbell. Feeds pets."

8 305.281-010 Cook (domestic ser).

9 The SVP for a Domestic Cook is "six" and permits more than "one" up to and including "two" years experience, education or training in the job offer.

10 Job Description for Domestic Cook. "Plans menus and cooks meals, in private home, according to recipes or tastes of employer: Peels, washes, trims, and prepares vegetables and meats for cooking. Cooks vegetables and bakes breads and pastries. Boils, broils, fries, and roasts meats. Plans menus and orders foodstuffs. Cleans kitchen and cooking utensils. May serve meals. May perform seasonal cooking duties, such as preserving and canning fruits and vegetables, and making jellies. May prepare fancy dishes and pastries. May prepare food for special diets. May work closely with persons performing household or nursing duties. May specialize in preparing and serving dinner for employed, retired, or other persons and be designated Family-Dinner Service Specialist (domestic ser.)."

11 In Regino Gonzalez, 97-INA-67 (BALCA, May 17, 1999), the Board noted that these findings are based on speculation and not on empirical evidence. "It appears implausible the actual number of job opportunities for skilled domestic workers has increased since 1991, since relatively few households have either the resources or the need for full-time skilled domestic staff. It appears that employers are submitting application for unskilled domestic job opportunities, but in completing the ETA 750, employers have inflated the job duties and requirements to qualify the alien workers for immediate visas as skilled workers under the provisions of IMMACT 1990."

12 20 C.F.R. § 656.21(b)(2)(i).The job opportunity's requirements, unless adequately documented as arising from business necessity:
(A) Shall be those normally required for the job in the United States;
(B) Shall be those defined for the job in the Dictionary of Occupational Titles (D.O.T.) including those for subclasses of jobs;
(C) Shall not include requirements for a language, other than English.
The requirements of subsections A, B and C § 656.21(b)(2)(i) must be read as conjunctive.1 Thus, job requirements which do not comply with all three subsections A, B and C, are unduly restrictive unless adequately documented as arising from business necessity.

13 Information Industries, Inc., 1988-INA-82 (Feb. 8, 1989).

14 Lucky Horse Fashion, Inc., 1998-INA-182 (Aug. 22, 2000) (en banc). In Lucky Horse the Board held "job requirements which do not comply with all three subsections A, B and C, are unduly restrictive unless adequately documented as arising from business necessity."

15 The Board added this comment in Kaplan: "Obviously, most cases involving domestic cook specializations will focus on the DOT and whether a requirement is normally required for the job in the United States, as the third requirement that the job shall not include requirements for a language other than English will only be present when the employer is requiring fluency or familiarity with a foreign language."

16 In defining the requirement as experience in the job offered, it means that, in order to be qualified, an applicant must have experience in the key listed job duties. An employer, therefore, may reject U.S. applicants who lack experience in some of the key duties. Saritejdiam, Inc., 1989-INA-87 (Dec. 21, 1989) Integrated Software Systems, Inc., 88-INA-200 (July 6, 1988).

17 Matter of Promex Corporation, 1989-INA-331 (Sept. 12, 1990); Mr. And Mrs. Mohammed Rezk, 1989-INA-333 (September 12, 1990).

18 One could introduce opinions from culinary institutes as to the amount of training required for an experienced cook to learn to prepare cuisine for which she has not has prior practice or experience, or one could obtain opinions from other experienced cooks to prove that the skill to prepare authentic dishes requires patience and years of training.

19 Preserved Ancient Eggs. These are often called thousand-year eggs, even though the preserving process lasts only 100 days. They may be purchased individually in Oriental markets or prepared by recipe. The Regional Cooking of China by Margaret Gin and Alfred E. Castle, 101 Productions, San Francisco, 1975.

20 Carlos Uy III supra.

21 The totality of circumstances is a balancing test that does not depend on the regulations but on the board's ability to balance the pros and cons of specific issues. It was first applied in Modular Container Systems, Inc., 89-INA-228 (July 16, 1991) (en banc) to determine whether an investor owner could be the beneficiary of an application for alien labor certification.

22 Mr. Stanley Rose of the North Carolina Field Center.

23 Texas Beef Group et al, v. Oprah Winfrey, US Court of Appeals for the Fifth Circuit, February 9, 2000.

24 Kaplan, supra.