7th Circuit shoots down Homeland Security decision

The Department of Homeland Security wrongly second-guessed the federal labor department in denying an application by a mental health residential care group – Hoosier Care Inc. – asking for labor certification and immigrant visas for two Filipinos, the 7th Circuit Court of Appeals ruled today.

An eight-page opinion in Hoosier Care Inc. v. Michael Chertoff, Secretary of Homeland Security, et al., comes from a decision last year in the U.S. District Court for the Central District of Illinois.

Hoosier Care, a non-profit organization that operates in both Illinois and Indiana, wanted to hire two Filipinos without American citizenship to be staff members to help take care of disabled adults and children at one of its Illinois facilities. They were to be "developmental disability specialists," the suit says. In order to hire them, the company had to first receive alien labor certification before being able to obtain immigrant visas for the pair.

The Department of Labor granted the certification after receiving information that the two met education requirements, but the Homeland Security ;s U.S. Citizenship and Immigration Services agency later rejected the petition to classify the two eligible for "employer-based" immigration status. An Illinois District Court ruled against Hoosier Care in its challenge of the decision.

However, the three judge panel – Judges Richard Posner, Ilana Rovner and Diane Sykes – reversed the decision and remanded it to the Department of Homeland Security for further proceedings, essentially arguing that the labor department has jurisdiction here and not homeland security officials.

In the decision, Judge Posner wrote, "But the Department of Homeland Security does not argue that in conducting such and 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 regulations and probably also persuade Congress to change the statute."