Judge Posner is. In the case of Hoosier Care v. Chertoff, the judge (who, I'm proud to say, was a professor at University of Chicago Law School while I was there), lays the smack down on USCIS. In this case, the Department of Labor approved labor certs for two positions at a nursing home and agreed that a college degree in any field was a reasonable requirement for the two positions. USCIS examiners decided they knew better than DOL and ruled that the college degree requirement approved by DOL was not acceptable.

Judge Posner sets USCIS straight and reminds them to stick to their job - determining if the candidates meet the requirements for the certified position and not second-guessing whether DOL made a good decision.

But you have to dig in to the opinion to see the juicy parts. Quoteth the Judge:

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 requirements, and thus the difference between requiring a bachelor's degree for a particular type of job and determining 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.

Download hoosier_care_7_41107.pdf