BALCA Benchbook - Chapter 25 Supplement (January 1997) | U.S. Department of Labor

Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 25 - SUPPLEMENT

Supplement current through January 1997

SCHEDULE B OCCUPATIONS

Return to Main Text .

TABLE OF CONTENTS

II. The regulation: § 656.23(d)

A. Waiver required for certification under Schedule B
B. Documentation requirements
C. Strict construction of the regulation

III. Grounds for denial of waiver

A. Ground similar to denials under the basic certification process
B. Error by local employment service
C. Failure to state ground for denial

IV. Household domestic service workers

A. Definition
- 1. Job duties not title are determinative
- 2. Exclusion of health or instructional service workers from definition
B. Avoidance of Schedule B denial

I. Overview

II. The regulation: § 656.23(d)

A. Waiver required for certification under Schedule B

Where the written record does not contain evidence that Employer filed a waiver for a schedule B position of Sewing Machine Operator, then labor certification was properly denied. Section 656.23(d) specifically requires an employer to file an application for a waiver for all occupations listed on schedule B. Sung Sportswear , 94-INA-235 through 94-INA-239 (May 26, 1995).

B. Documentation requirements

C. Strict construction of the regulation

III. Grounds for denial of waiver

A. Ground similar to denials under the basic certification process

B. Error by local employment service

C. Failure to state ground for denial

IV. Household domestic service workers

A. Definition

1. Job duties not title are determinative

2. Exclusion of health or instructional service workers from definition

B. Avoidance of Schedule B denial

There is no provision for a waiver from Schedule B for a live-in household worker with less than one year of experience as 20 C.F.R. §656.21(a)(3)(iii) requires that the worker possess one year of experience to obtain labor certification. Neely Towe , 90-INA-278 (Mar. 31, 1992). See also Michael A. Yu , 91-INA-186 (June 25, 1992) (one year of experience not established).

Rejection of a U.S. worker for other than lawful, job-related reasons in violation of 20 C.F.R. § 656.21(b)(7) "is sufficient to support a denial of a request for Schedule B waiver." Danbury Hilton Inn , 90-INA-281 (Apr. 17, 1992).

The alien cannot satisfy the one-year experience requirement through a position with the petitioning employer. Mark & Andrea Smith , 90-INA-178 (Jan. 19, 1993); Greg A. Lindquist , 91-INA-345 (Dec. 16, 1992). The full Board reaffirmed this holding, originally established in Roger & Denny Phelps , 88-INA-214 (May 31, 1989) (en banc), in Marvin and Ilene Gleicher , 93-INA-3 (Oct. 29, 1993) (en banc). The CO requested that the Board overturn Phelps and remand the case for the CO to grant certification. Noting that schedule B occupations involve a high turnover rate of workers, the Board concluded that one year experience with an employer other than the petitioning employer provides greater assurance that the alien is tied to the position. The Board was not persuaded by the CO's contention that the plain language of section 656.11, requiring one year experience with "past or present employers" necessarily includes experience with the petitioning employer.

Waiver was denied where the employer failed to document that the alien had the required one-year of experience in performing the duties of the job of live-in Housekeeper. The panel noted that there was no "showing of duties performed, hours worked daily, or wages paid." Peter & Louisa Kwan , 91-INA-369 (May 26, 1993).

For removal from Schedule B, the one year of paid experience as child monitor must be gained in a non-familial, bona-fide, arms length, employer-employee relationship. Janine C. Husseini , 92-INA-432 (Nov. 23, 1993).

3. Documentation of one year of paid experience

a. Regulatory provisions

Labor certification properly denied where the employer failed to submit required documentation evidencing that the alien had one year of paid experience in the job offered, housekeeper, as required by § 656.21(a)(3)(iii)(A). Niki Golod , 93- INA-354 (Jul. 26, 1994).

b. Technical Assistance Guide provisions

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

d. Experience gained with applying employer

e. Experience gained in self-employment

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