THE PERM BOOK Edition PERM AND THE HOUSEHOLD DOMESTIC SERVICE WORKER

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1 PERM AND THE HOUSEHOLD DOMESTIC SERVICE WORKER By Nancy M. Lawrence Once upon a time, labor certification cases involving household domestic service workers (generally understood to include housekeepers, nannies, and babysitters) were fairly common. In fact, in some areas of the U.S., these cases could form the bulk of an immigration practitioner s practice. In general, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, with its 3-year/10-year bars 29, has decimated the number of household domestic service worker cases that have been filed over the course of the past 9 years. The two exceptions to this general trend related to the two implementations of 245(i), one occurring in the few months leading up to January 14, 1998, and the other occurring in the few months prior to April 30, The March 1, 2005, return of backlogs in the Employment-Based, Third Preference, Other Worker category will also have a long-lasting impact on the filings of household domestic service worker cases. The script that is played out in my office several times a week goes as follows: Employer: I have a housekeeper, Yvonne, and I would like to sponsor her for her green card. We ve heard that there s a new law, PERM, that will allow me to file papers for Yvonne and to get a green card for her in a very short period of time. Attorney: What kind of visa does Yvonne have? Employer: Yvonne was brought here by a woman who works for the International Monetary Fund, but she left that family about 18 months ago. That little white card in her passport expired more than a year ago. Attorney: Has Yvonne been sponsored for a green card before? Did a family member or employer file an application for her before January 14, 1998, or maybe before April 30, 2001? Is it possible that she was the beneficiary of anyone else s green card paperwork that might have been filed by those dates? Employer: No, nothing has ever been filed for Yvonne; she says nothing has been filed for any close relative of hers, either. Attorney: Well, it is certainly legal for you to sponsor Yvonne, but it may not make any sense, from a practical viewpoint, for you to do it. Apparently PERM will allow the first stage, Yvonne s labor certification application, to go through the system very quickly - maybe in as few as 45 days, although we suspect that initially, the cases may take longer than that while the system s bugs are worked out. Once the labor certification application has been approved, we can file the 29 See Immigration and Nationality Act, as amended, 212(a)(9)(B).

2 second stage, the I-140 preference petition. Based upon current processing times, that stage can take anywhere from 2 months to 18 months, depending upon where you live. 30 You should know, however, that the filing of the PERM case will not make Yvonne legal; the approval of the PERM case will not make her legal; the filing of the I-140 petition will not make her legal; the approval of the I-140 case will not make her legal. Because Yvonne has been working illegally in the U.S., she will have to go to a U.S. consular post abroad, probably in her home country, to process the third stage of her case when the time finally comes for her to have an interview. The March 2005 cut-off date on the Visa Bulletin is July 1, 2001, meaning that as of March 2005, USCIS and the consular posts are able to interview persons who had filed their labor certification applications prior to July 1, If the USCIS and State Department are able to handle one month s worth of filings each month, and can advance the cut-off date one month each month, it currently means a waiting time of at least 3 years and 8 months from the date upon which the PERM application is filed. Unfortunately, it is highly likely that these cut-off dates will advance much more slowly than that - maybe only 1 week each month, based upon the number of backlogged cases from early which would mean a waiting time of something more along the lines of 14.6 years. To make matters worse, when Yvonne departs the U.S. to attend her immigrant visa appointment at the U.S. consulate in her home country, she will trigger a 10-year bar, and will not be allowed to return to the U.S. for 10 years. Therefore, this process has the potential of providing her with a green card only at the end of about 24 years, the last 10 of which will have been spent outside the U.S. So, sure, you can sponsor Yvonne - but this is why, from a practical point of view, it may not make any sense for you to start the sponsorship. The fact that she will potentially have a very fast labor certification under PERM is certainly nice, but it doesn t change the total processing time for her green card case. One might, then, ask whether there are circumstances under PERM when an attorney can/should proceed with a household domestic service worker case. I can envision at least 4 scenarios: A situation where the foreign national is here legally, and can maintain lawful nonimmigrant status while the case is working its way through the system. Let s say, for example, that the household domestic service worker is 30 As of March 4, 2005, the processing times for other worker I-140s were as follows: California Service Center 08/04/2004; Nebraska Service Center 09/15/2003; Texas Service Center 11/08/2004; Vermont Service Center 12/09/2004.

3 working for a G-4 employer, and the spouse of the G-4 is a permanent resident or a U.S. citizen. The G-4 can continue to support extensions of the household domestic service worker s G-5 visa, while the G-4 s permanent resident / U.S. citizen spouse can pursue permanent resident status for the household domestic service worker. It may still take 14.6 years for the priority date to be reached; however, at least there is no 10-year bar problem in this scenario. A situation where the foreign national qualifies for 245(i) protection because of grandfathering provisions: a prior I-130 petition, or a prior labor certification application filed in her 31 own name. 32 Again, it may still take 14.6 years for the priority date to be reached; however, the foreign national will be able to file an adjustment of status case in the U.S. under 245(i) once the priority date is current, thus avoiding the 10-year bar triggered by leaving the country for the immigrant visa appointment abroad. A situation where the employer and foreign national, based upon sheer optimism, believe that the law will change, such that: (a) 245(i) will be reinstated; or (b) 212(a)(9)(B) will be repealed; or (c) the other worker quotas will be increased (the latter allowing a person who has been in unlawful presence in the U.S. for less than 180 days to depart the U.S. prior to triggering the 3-year/10-year bar, and to wait out the green card processing time abroad). It should be noted that an attorney undertaking such a case would be well-advised to provide the employer and the household domestic service worker with a very detailed and iron-clad disclaimer, to be signed by both the employer and employee, explaining in writing that it may well be that the laws will not change, and that all of the legal fees and time applied to the case may have ultimately been spent in vain. A situation where the alien is in illegal status but not subject to unlawful status, such as a status with D/S, a Canadian who has no I-94 departure date, aliens under the age of 18, and other categories such as asylum applicants and others. Such an alien would then be required to go through consular processing for being in illegal status but would not be subject to the 10-year bar for being in unlawful status. Hence the alien would be ineligible for adjustment of status but would be able to return immediately to the U.S. following consular processing. Exciting Development Regarding Nannies 31 For simplicity s sake, I have chosen to use the female gender in referring to the household domestic service workers. Obviously, males can be household domestic service workers too! 32 Note that if a foreign national is being substituted in a case where the original labor certification was filed prior to January 14, 1998 or April 30, 2001, the foreign national is NOT entitled to the 245(i) grandfathering protection of that case - see 8 C.F.R (j).

4 The DOL s Standard Occupational Classification (SOC) system defines a variety of positions, and sets forth what DOL considers to be reasonable requirements for these positions. Unfortunately, some of the new SOC classifications have lowered the Specific Vocational Preparation (SVP) guidelines for formerly well-established occupations. With respect to nannies, however, the SOC has actually raised the SVP guideline, such that nannies can now technically be eligible for the employment-based, third preference, skilled worker category! The DOL has given this newly defined occupation 33 the SOC classification of Nannies, and places it squarely in Job Zone Three, with an SVP range of 6.0 up to 7.0 (which can encompass a 2-year experience/education/training requirement). Of course, the usual factors will have to be addressed in order for the case to qualify for the skilled worker classification: the employer s minimum requirement for the position will have to be 2 years, the nanny will have to have gained 2 years of experience/education/training prior to being hired as a nanny by the sponsoring employer (or will have to satisfy the trained-on-the-job requirements described elsewhere in this book), and the employer will have to be willing and able to pay the nanny the prevailing wage for this Job Zone Three occupation. Furthermore, the nanny will be subject to the usual restrictions on adjustment-of-status (including the 3-year/10-year bar) if the nanny has accumulated unlawful presence in the U.S. On the other hand, this new classification of the position provides previously unavailable opportunities to employers and nannies who can take advantage of the skilled worker category, with its relatively nonexistent priority date backlogs. 34 Using PERM to Apply for a Household Demestic Service Worker There will continue to be instances where an immigration attorney will file a household domestic service worker application under PERM. The PERM regulations envision two different kinds of household domestic service worker cases: Live-out Household Domestic Workers. Under the old labor certification regulations, many of these would have been considered to be Schedule B cases; however, under PERM, there is no longer a distinct category for Schedule B occupations. The presumption is that these kinds of non-professional occupations will be processed through PERM in the same way that all of the other non-professional worker cases are processed. Accordingly, if the position is a live-out position, you should follow the basic labor certification process, with one slight exception. Section , General Instructions, (d) Notice, (2) states: In the case of a private household, notice is required under this paragraph (d) only if the household employs one or more U.S. workers 33 O*Net Online, 34 Other than for nationals from India, China and the Philippines.

5 at the time the application for labor certification is filed. The documentation requirement may be satisfied by providing a copy of the posted notice to the Certifying Officer. For example, in a situation where the household employer has a U.S. worker performing house cleaning functions while the foreign national is performing nanny functions, a notice must be posted in a place [the refrigerator door?! the washing machine?!] where the U.S. worker can readily read it on her way to or from the employer s house. Live in Household Domestic Service Workers. The Department of Labor has set aside Live-in Household Domestic Service Worker cases as a special category for PERM processing. Section H, Job Opportunity Information, Item 17 on Form ETA 9089 asks: Does the job require the alien to live on the employer s premises? Items 18 and 18-A ask specific questions relating to live-in household domestic service workers. For the most part, live-out cases will be handled the same as all other nonprofessional worker cases including, where applicable, the posting notice requirement (see above). If the case involves a live-in requirement, however, the provisions of 20 C.F.R Live-in household domestic service workers, (b) Required documentation set forth additional steps that must be followed (see below). Regarding Item 17, it appears that we will need some further clarification from the Department of Labor. In pre-perm cases, there could be a situation where the foreign national was currently living in the employer s home, but not because the position required the alien to live-in; rather, the live-in aspect was simply an arrangement mutually convenient to the employer and the foreign national. Previously, one could handle this by explaining, on Part B of the ETA 750, that in the future, the foreign national would be residing at an address that was different from the employer s address. The ETA 9089 form may not provide this flexibility. If one answers no to Item 17 on the ETA 9089 form, but elsewhere on the form lists the same address for (1) the foreign national, (2) the employer, and (3) the primary work site, will this trigger an automatic audit by the Certifying Officer? This question will probably remain unanswered until PERM is launched and we start receiving either approval notices or audit letters for these kinds of cases. As a practice pointer, it is long been preferred to avoid the live-in requirement, if possible. In many of these cases, by the time the foreign national is about to be interviewed for permanent resident status, she is no longer living in the employer s home, or her husband and children may be about to follow-to-join her to the U.S. If the case was structured as a live-in case, this could become problematic at the immigrant visa interview stage of the case. As a general rule of thumb, When in doubt, choose live-out!

6 Contents of the Recruitment File Common to Both Live-in and Live-out cases All of the documentation relating to both live-out and live-in household domestic service workers must be kept in the recruitment file, just as in the case of other nonprofessional PERM applications, for presentation to the Certifying Officer if the case is audited. The items common to live-in and live-out cases are as follows: The employer s recruitment summary. The posting notice, if applicable. The prevailing wage determination. Evidence relating to the placement of the job order. The newspaper advertisements, which will have appeared on two Sundays, as elsewhere described for non-professional positions. Ideally, the file should contain the actual newspaper tear-sheets; however, proof of publication should also be acceptable. Responses received from U.S. workers in conjunction with the recruitment efforts. Regarding the drafting of the newspaper advertisements, it is clear that in a case that is being filed as a live-in household domestic service worker case, the living-in requirement must be mentioned in the advertisement. In cases in which the foreign national resides elsewhere, or resides with the employer as of the date upon which the PERM application is filed but intends to live elsewhere by the time of the immigrant visa interview, it would seem to be preferable to leave all mention of the living arrangement out of the advertisement. This way the focus of the advertisement is on the job duties, not on living arrangements. The PERM regulations allow an employer to have applicants respond to a P.O. Box, rather than to a specific address, as long as the ad mentions the geographic area where the job is located. For the sake of the household employer s privacy, it would certainly seem prudent to use a P.O. Box, rather than having the employer s home address appear in the advertisement. Additional Contents of the Recruitment File Relating Solely to Live-in Cases The following additional items are set forth in 20 C.F.R Live-in household domestic service workers, (b) Required documentation: A statement describing the foreign national s living accommodation. For those practitioners familiar with the old ETA 750A form, this statement essentially tracks the information formerly provided in Item 20 of that form. The statement must contain the following information:

7 (i) Whether the residence is a house or apartment; (ii) The number of rooms in the residence; (iii) The number of adults and children, and ages of the children, residing in the household; and (iv) An assertion that free board and a private room not shared with any other person will be provided to the alien. Two copies of an employment contract, each signed and dated by both the employer and the foreign national before the PERM application is filed. 35 Note that in situations involving live-in household domestic service workers, the legal overtime rate is straight-time, rather than time-and-onehalf. 36 Proof that the foreign national had one year of full-time, paid experience as a domestic worker prior to working for the employer. 37 According to the PERM preamble, this is being required: (T)o ensure the alien knows the demands unique to household domestic service work, has some attachment to the occupation, and will likely continue working in this occupation after arrival in the U.S. Our experience has shown persons not previously employed in the occupation for a reasonable length of time generally do not remain in that employment in the U.S.... This requirement does not correlate to the minimum training and/or experience required to perform the job and should not be shown as a requirement for the job opportunity. 38 Of course, the same argument could probably have been made in connection with live-out household domestic workers; thankfully, they are not subject to the same requirement. Thus, in a situation where the foreign national cannot prove that she has the requisite one year experience prior to working for the sponsoring employer, it will be critical to advise the clients to change the arrangement such that it is no longer a live-in situation. An additional requirement, mentioned in 20 C.F.R , rather than in 20 C.F.R , is that a business necessity statement, with supporting documentation, be provided upon request. It would thus be logical to keep this evidence in the recruitment file. Under PERM, the employer must 35 Attached in this regard is a sample Employment Contract that has historically been accepted as meeting all of the Department of Labor s requirements C.F.R (a)(2) Application of minimum wage and overtime provisions. 37 Attached is a sample Verification of Employment form that has historically been accepted as sufficient by the Department of Labor Federal Register, Vol. 247, page (December 27, 2004).

8 still justify, beyond mere assertions, the live-in requirement. The regulation provides the following guidance in this regard: For example, a live-in requirement could be supported by documenting two working parents and young children in the household, and/or the existence of erratic work schedules requiring frequent travel and a need to entertain business associates and clients on short notice. Depending upon the situation, acceptable documentation could consist of travel vouchers, written estimates of costs of alternatives such as babysitters, or a detailed listing of the frequency and length of absences of the employer from the home. Conclusion Household domestic service workers cases, both live-in and live-out, continue to be feasible under PERM. The larger question is whether this is a viable and practical solution for your clients, in light of the 3-year/10-year bars and the world-wide backlog in the Employment-Based, Third Preference, Other Worker category. About the Author Nancy M. Lawrence graduated from George Washington Law School in 1978, and has practiced family- and employment-based immigration law for the past 26 years. Her clients include corporations of various sizes, as well as individuals. Ms. Lawrence s current office is in Fairfax, Virginia, where she is of-counsel to the law firm of Odin, Feldman & Pittleman, PC. Ms. Lawrence has been a member of the American Immigration Lawyers Association (AILA) since 1979, serving as the Chair of the AILA Washington, DC Chapter from 1987 to Since 1998, Ms. Lawrence has been a Spring semester Professorial Lecturer at George Washington Law School, teaching a course entitled Immigration Law II - Family and Employment-Based Immigration Practice. She has been teaching the same course as a Fall semester Adjunct Professor at American University s Washington College of Law since 2001.

9 SAMPLE EMPLOYMENT CONTRACT AGREEMENT made between [employer s name] of [address], herein referred to as Employer, and [foreign national s name] of [address], herein referred to as Employee. 1. Employer agrees to employ Employee as a household domestic service worker, and promises to pay her [wage] per hour, [number of hours] per week. 2. The employment will consist of [number] hours per week, [number] days per week, [day of week] through [day of week]. The hours of daily employment will be from [give hourly schedule]. Employee is free to leave the premises at all other times except that she may work overtime if paid for the overtime at the same hourly rate as set forth in Paragraph 1. It is understood that Employee will reside on the premises. 3. Employee will perform a variety of household tasks including, but not limited to, such activities as the following: [describe complete duties]. 4. Employer has not in the past been, is not presently, and will not in the future be, advancing funds to Employee for any purpose [if money has been advanced by the employer, then the total amount of money with details of specific items, and the terms of repayment by the foreign national, must be described here]. 5. Employee will be provided with board and a private room at no cost to her. 6. It is understood that Employee will not be required to give more than 2 weeks notice of intent to leave the employment contracted for, and that Employer must give Employee at least 2 weeks notice before terminating the employment. 7. Any changes, deletions or additions to this Contractual Agreement have been initialed by both Employer and Employee. 8. A duplicate contract has been furnished to Employee. 9. Employee certifies that she has received a copy of this Agreement and agrees to its terms. [10. Any other agreement or condition not specified on the PERM application must be included here] [Employer s name] [date] [Foreign national s name] [date]

10 SAMPLE VERIFICATION OF EMPLOYMENT This is to certify that was employed by me at my home, located at. I paid her per week [or month] for the work that she performed for me. The following are details concerning this employment: ************************************************************************ JOB TITLE: MONTH & YEAR EMPLOYMENT BEGAN: MONTH & YEAR EMPLOYMENT ENDED: DAILY HOURS OF EMPLOYMENT: from to DAYS OF WEEK OF EMPLOYMENT: from through AVERAGE NUMBER OF HOURS WORKED EACH WEEK: DETAILED STATEMENT OF DUTIES PERFORMED BY EMPLOYEE:

11 HOUSEHOLD APPLIANCES AND EQUIPMENT USED BY EMPLOYEE: DATED: [signature] [printed name of person signing] [current address of person signing]