"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.
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).
The regulations at § 656.23(d)(2) require that the
petition include the following:
A written request for a Schedule B waiver.
A completed Application for Alien Employment
Certification form.
The documentation required by
§§ 656.20(b), (c), (e) and (f)
which set forth the general filing
instructions for the labor certification
process.
The documentation required by § 656.21 which
specifies the requirements for the basic labor
certification process.
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.
The regulations at § 656.23(d) are to be strictly
construed. SeeVermont 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.
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).
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).
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).
"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).
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).
Household workers who primarily provide health or
instructional services are not considered household domestic
service workers. § 656.11(b)(26).
SeeMr. 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)).
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). SeeWilliam and Daneen
Miller, 89-INA-30 (June 12, 1990).
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).
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.
(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.)
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 andDaneen Miller, 89-INA-30 (June 12,
1990); Roger and DennyPhelps, 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).
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).
