Judges' Benchbook
Second Edition - May 1992




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I. Overview

II. The regulation: § 656.23(d)

III. Grounds for denial of waiver

IV. Household domestic service workers

I. Overview

"Schedule B" lists jobs for which the Department of Labor has determined that a nationwide surplus of United States workers exists and that the employment of aliens in these positions would adversely affect the wages and working conditions of U.S. workers employed in similar occupations. 20 C.F.R. § 656.23.

These jobs generally fall into two classes. First are jobs that require little or no education, experience or skill and workers can generally be trained quickly to perform satisfactorily. Then there are jobs characterized by relatively low wages, long and irregular working hours, and poor working conditions. Neither class of occupations will be certified unless waiver or removal from Schedule B is obtained.

See 20 C.F.R. § 656.11 for a listing and description of Schedule B occupations.

II. The regulation: § 656.23(d)

A. Waiver required for certification under Schedule B

In order for an alien to be certified for a Schedule B position, an employer must obtain a waiver. The employer petitions the Regional Certifying Officer for waiver when the labor certification paperwork is initially filed with the local Job Service office. § 656.23(d).

If waiver is granted, the CO will issue a labor certification. If waiver is not granted, the CO will follow the labor certification denial procedures set forth at § 656.25(c)-(g).

B. Documentation requirements

The regulations at § 656.23(d)(2) require that the petition include the following:

  1. A written request for a Schedule B waiver.

  2. A completed Application for Alien Employment Certification form.

  3. The documentation required by §§ 656.20(b), (c), (e) and (f) which set forth the general filing instructions for the labor certification process.

  4. The documentation required by § 656.21 which specifies the requirements for the basic labor certification process.

  5. Documentary verification, which the employer has obtained from the local job service office which contains the job opportunity in its administrative area, that the employer has had a job order for the same job on file with the same local office for a period of thirty calendar days and that the local office and the employer, using the job order, were not able to obtain a qualified U.S. worker.

C. Strict construction of the regulation

The regulations at § 656.23(d) are to be strictly construed. See Vermont Hotel , 89-INA-361 (Mar. 5, 1991), strictly construing the requirement at § 656.23(d) that a Schedule B order remain open for thirty calendar days.

  • In Vermont Hotel , an employer hired U.S. workers prior to the expiration of the thirty-day period, but the workers failed to appear at work or left the job. Labor certification was properly denied because the employer failed to reopen the job order for thirty calendar days by contacting the state job service.

III. Grounds for denial of waiver

A. Ground similar to denials under the basic certification process

Denial of a Schedule B waiver may be based on grounds similarly found under the basic labor certification process, such as:

  • experience gained while working for the employer, in violation of § 656.21(b)(6), Super Seal Manufacturing Co. , 88-INA-417 (Apr. 12, 1989);

  • unlawful rejection of a U.S. applicant, in violation of § 656.21(b)(7), Listrani's Restaurant , 88-INA-380 (June 8, 1989); A.V. Restaurant , 88-INA-330 (Nov. 22, 1988);

  • the failure to document sufficient testing of the labor market. Bill Ellis & Sons , 90-INA-226 (Sept. 20, 1991).

B. Error by local employment service

There is no entitlement to a waiver from Schedule B based upon the failure by the local employment service to refer all of the applicants for the job offered. Bob's Exxon , 89-INA-259 (May 2, 1991) (adequate test of the labor market was not achieved).

C. Failure to state ground for denial

A CO's failure to state the grounds for a denial of a Schedule B waiver will be found to be arbitrary and capricious. William and Daneen Miller , 89-INA-30 (June 12, 1990).

IV. Household domestic service workers

A. Definition

"Household Domestic Service" encompasses a variety of tasks in private households, including cleaning, dusting, washing, ironing, making beds, mending clothes, cooking, serving food and caring for children. See § 656.11(b)(26).

Two rules should be noted:

1. Job duties not title are determinative

A job's duties, not its title, determine whether the job contitutes household domestic service.

  • Yu Hsia Liu-Hee , 90-INA-381 (Jan. 6, 1992) ("Children's Tutor" held to fall within the category of household domestic service worker where the job duties involved preparing meals, bathing children, washing and ironing clothing, and assisting children with homework).

2. Exclusion of health or instructional service workers from definition

Household workers who primarily provide health or instructional services are not considered household domestic service workers. § 656.11(b)(26).

  • See Mr. and Mrs. William Gillman , 88-INA-406 (Feb. 27, 1990) (experience as a nurse's aide does not meet the definition of a domestic household worker pursuant to § 656.11(b)(26)).

B. Avoidance of Schedule B denial

An employer may avoid a Schedule B denial for a household domestic service worker in either of two ways, waiver or removal.

1. Waiver

Where it cannot be established that the alien has at least one year of paid experience as a domestic household worker, an employer seeking labor certification may petition for a waiver pursuant to § 656.23(d). See William and Daneen iller , 89-INA-30 (June 12, 1990).

2. Removal

By negative inference, § 656.11(b)(26) implies that if the alien establishes at least one year of documented full time paid experience as a household domestic service worker, then the occupation is removed from Schedule B application. See § 656.11(b)(26).

3. Documentation of one year of paid experience

a. Regulatory provisions

To remove the application from Schedule B where the job offer involves a live-in household domestic worker, the requirements at § 656.21(a)(3)(iii) must be satisfied. Pursuant to this section, the alien's total paid experience must equal a full year's employment on a fulltime (forty hours per week) basis. Two years of working halftime will be sufficient; however, working six months for eighty hours a week will not suffice, since there must be employment which covers at least twelve months. The employment may be for more than one employer. See § 656.21(a)(3)(iii).

Documentation of the previous one year's experience must:

  • Be dated and signed by the employer.

  • Show the name and address of the person who signed it.

  • Give information concerning the dates (month and year) the employment began and ended; the hours per day worked; the number of days per week worked; the place where the alien worked; the duties performed; the equipment and appliances used; and the wages per week or month.

b. Technical Assistance Guide provisions

(a) Documentation of one year previous paid experience demonstrates the alien's attachment to domestic service as an occupation, assures that the alien knows the unique demands of household domestic service workers, and suggests that the alien is likely to continue in the occupation.

(b) Key to the documentation required is that it reflect a bona fide employer-employee relationship existed. Therefore, experience in one's own home or experience gained from a close relative is not acceptable.

(c) This one year requirement is not a minimum job requirement for recruiting U.S. workers and should not be shown by the employer as a requirement for the job opportunity. The DOL has established that specific vocational preparation for a household domestic is no more than three months, therefore, a one year requirement will normally be found unduly restrictive and lead to a denial of certification.

(Information cited in (a), (b) and (c) above can be found at TAG No. 656, p.43 (Sept. 1981)).

(d) The Technical Assistance Guide identifies the following categories of occupations that fall under the designation of household domestic worker: day worker; ironer; laundry worker; domestic housekeeper, home; cook; houseworker, general; child monitor; butler; companion; butler, second; and personal attendant. (TAG I § 656.11.)

c. Requirement that experience be obtained in "arms-length" employment relationship

The one year of paid experience as a household domestic must be gained within a non-familial, bona fide "arms-length" employer-employee relationship. William and Daneen Miller , 89-INA-30 (June 12, 1990); Roger and Denny Phelps , 88-INA-214 (May 31, 1989) ( en banc ) (alien's employment with her former employer only qualified as paid experience for six months, up to the day she married the employer's son; the dissent disagreed).

d. Experience gained with applying employer

The experience cannot be gained through employment with the applying employer. Roger and Denny Phelps , 88-INA-214 (May 31, 1989) ( en banc ).

e. Experience gained in self-employment

Experience can be gained working in a self-employed capacity for multiple employers. William and Daneen Miller , 89-INA-30 (June 12, 1990).

f. No need to document experience where live-in requirement is deleted

An employer is not required to document that the alien possesses one year of paid experience as a live-in domestic where it deletes the live-in requirement on rebuttal. Karenann Pousard , 90-INA-172 (June 24, 1991).

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