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Editor's Comments of the Day
In the Matter of Lucky Horse Fashion, Inc., 1997-INA-0182 (Aug. 22, 2000)(en banc), the Board of Alien Labor Certification Appeals (BALCA) upheld the Department of Labor's Certifying Officer's decision to deny the labor certification for a Chinese-speaking sewing machine repairer. The employer's workforce spoke Chinese. Only 10% could speak English sufficiently to communicate problems with the sewing machines. The employer argued that the sewing machine repairer needed to speak Chinese so that the workers could communicate to him the problems with the machines.
BALCA applied the two-prong test for business necessity set forth in Information Industries, Inc., 1988-INA-82 (February 9, 1989)(en banc). Under that standard an employer must demonstrate that 1) the foreign language requirement bears a reasonable relationship to the occupation in the context of the employer's business and 2) is essential to perform, in a reasonable manner, the job duties as described by the employer. The Board drew a distinction between an employer's need to communicate with "clients, contractors and customers," and the need to communicate with co-workers. It found that the language spoken by co-workers had nothing to do with the occupation itself. The Board concluded that, "the result of permitting an employer to establish business necessity for a foreign language, solely because all of its employees only speak a foreign language is to create a self-perpetuating foreign labor force that, as a practical matter, excludes all but a few US workers, contrary to the Act."
The dissent pointed out, in a footnote, that there was nothing to indicate that the workforce was not comprised of US workers. BALCA is attempting to do administratively what it is not even clear can be done legislatively - mandate English as the national language of the United States. While English is the most widely spoken language in the United States, it is not the only one. Far from protecting US workers, BALCA institutionalizes discrimination against US workers who do not speak English when it makes a rule that the language spoken by the workforce can never justify a requirement in a labor certification for a language other than English.
Cases of the Day
BALCA Denies Business Necessity Justification of Non-English Speaking Workforce
In the Matter of Lucky Horse Fashion, Inc., 1997-INA-0182 (Aug. 22, 2000)(en banc), the Board of Alien Labor Certification Appeals upheld the Department of Labor's Certifying Officer's decision to deny the labor certification for a Chinese-speaking sewing machine repairer. The Board found that the language spoken by co-workers had nothing to do with the occupation itself and the only justification offered by the employer was that the foreign language was required to communicate only with the co-workers. The Board concluded that the "result of permitting an employer to establish business necessity for a foreign language, solely because all of its employees only speak a foreign language is to create a self-perpetuating foreign labor force that, as a practical matter, excludes all but a few US workers, contrary to the Act."
INS News of the Day
Temporary Protected Status for Bosnia-Herzegovina to End
The INS has released information and answers to commonly asked questions regarding terminating the designation of Bosnia-Herzegovina under the Temporary Protected Status (TPS) program. In order to comply with statutory timeframes, designation of Bosnia-Herzegovina has been extended until February 10, 2001.
Immigration News of the Day
South Africa's Brutal New Bias
The Christian Science Monitor reports that after decades of apartheid disgruntled South Africans are now focusing their wrath almost exclusively on fellow Africans, rather than immigrants from Eastern Europe and Asia. According to Human Rights Watch, which has criticized South Africa for its treatment of immigrants, South Africa deports almost 200,000 Africans each year and police arrest more people for violating immigration laws each year than for any other reason.
INS Vows to Curb Its Overzealous Tactics in Portland
According to the Los Angeles Times, INS Commissioner Doris Meissner has ordered an investigation of practices at the Portland airport after Oregon's senators complained that foreign travelers were losing confidence in Portland as a port of entry due to persistent abuse. The latest uproar began recently when a Chinese businesswoman was detained for two days and strip-searched, apparently because her passport was frayed, leading an immigration inspector to assume that it was fraudulent even though it turned out to be legitimate.
ILW.COM Highlights of the Day
Chicago Lawyer writes about ILW.COM's Case Tracking Application
Read the article "Legal Research Alliance Formed" in the August issue.
ILW.COM Chats and Discussions of the Day
Chat with Alice Yardum-Hunter, Esq.
Attorney Alice Yardum-Hunter will answer questions on all aspects of immigration law on Tuesday, September 5, 2000, at 9:00 p.m. Eastern (New York) time. Questions will be accepted starting 15 minutes prior to the start of the chat session.