A labor certification application for a live-in household
domestic service worker must include documentary evidence of the
relationship between the alien and the employer. Among other
things, the employer must document:
the household living accommodations;
the terms of the employment contract between the
employer and the alien, which must state:
the alien's wages and hours of employment, and
that the alien may work over-time if paid at the
legally required rate;
that the alien will receive free room and board,
and reside on the employer's premises;
that the alien is free to leave the employer's
premises during non-working hours;
the alien's duties;
the employer's monetary advances to the alien and
the terms of repayment;
that the alien is free to leave and the employer
is free to terminate the alien's employment with two
weeks' notice;
that the alien has received a duplicate contract;
any other agreement between the employer and the
alien; and
Section 656.21(a)(3) does not apply to applications for jobs
outside of the category of live-in household domestic service
worker. For instance, an employer need not provide a statement
describing the household living accommodations for a child
monitor, where the child monitor must be "willing to stay
overnight on occasion when employers are out of town"
(approximately once every three months). Robert and Ellen
Hoffman, 90-INA-451 (Mar. 20, 1991).
The employer bears the burden of complying with the precise
regulatory requirements.
The employment contract must specifically state the
alien's hourly rate and that the alien will be paid for
overtime at a rate no less than the legally required
overtime rate. Sandra Ross, 89-INA-42 (Oct. 30,
1989).
Section 656.21(a)(3)(ii) requires an employer to produce two
copies of the executed employment contract. Where the original of
the employment contract for a live-in domestic job is not
available, photocopies of that contract are acceptable. J.
Michael & Patricia Solar, 88-INA-56 (Apr. 6, 1989) (en
banc).
Section 656.21(a)(3)(ii)(I) provides that the employment
contract must state that the worker will be provided with a
private room and board at no cost. It is not sufficient to state
that a private room will be available to the employee during
non-working time. Sandra Ross, 89-INA-42 (Oct. 30,
1989).
Where an employer changes residences several times during
the certification process without informing the CO, it has not
shown that a private room and board is available to the alien.
Elizabeth Beaumont, 88-INA-168 (Mar. 21, 1990).