Employment Contracts for B-1 Domestics ("Nannies")
Posted Apr 23, 2004
The U.S. Department of State (DOS) recently issued an update on the requirements for employment contracts for B-1 visa domestic attendants. Regular readers may recall our July 18, 2003 MurthyBulletin article, Visa Opportunities for Household and Domestic Attendants, available on MurthyDotCom, outlining the visa eligibility requirements for B-1 domestic attendants or "nannies."
Lawful permanent residents are not generally eligible to sponsor domestic attendants. In the case of United States citizens, only those who are temporarily returning to the U.S. from abroad may sponsor domestic attendants if their stays in the U.S. are temporary in nature and will not exceed four years. However, most A, G, and NATO visa holders and most other nonimmigrant visa holders (B, E, F, H, I, J, L, M, O, P, Q, R, or TN) are eligible to sponsor domestic attendants. The DOS advisory is helpful since it reminds consular officers of the availability of this visa category under law. The advisory will also help more people to take advantage of the B-1 domestic attendant visa. Many people from certain countries are accustomed to having domestic help and may consider bringing such help with them from their home countries to the United States. Details of the requirements are outlined in the above-referenced article.
One of the requirements for bringing in a domestic attendant is that there must be a signed employment contract between the employer and the nanny. Generally, the contract must stipulate that the employer guarantees the greater of the prevailing wage or the minimum wage, that the employer will provide free room and board, and that s/he will be the sole provider of employment to the B-1 attendant. The recent update from the DOS discusses additional terms that should be included in the employment agreement.
With respect to determining the prevailing wage, the DOS considers the U.S. Department of Labor's prevailing wage statistics to most closely reflect a fair living wage for servants and personal employees. It instructs consular officers to rely upon these figures when determining whether employment contract provisions satisfy applicable prevailing wage requirements. Providing a sense of the wage requirements, the DOS listed examples of hourly prevailing wage information for several regions. The Level I hourly prevailing wage for 2004 for "Maids and Housekeeping Cleaners" is $8.84/hour in the New York City area, $6.71/hour in the Washington, DC area, and $6.15/hour in the Miami, FL area. Until these figures were suggested in this DOS update, no one was exactly sure what figures the consular officers would consider when approving the B-1 visa for a domestic attendant.
The DOS further advised that consular officers should ensure that the terms of the contract are generally clear. The DOS discussed additional contract terms; in particular, payment for time on premises after hours, employee's retention of passport, and employee's right to leave the premises when not on duty. The DOS reminded consular officers that, at the time of the interview, they should inform all domestic workers that they will be subject to and protected by U.S. law while in the United States, and that their contracts create legal obligations on the parts of both the employee and the employer. The DOS further instructed the consular officers that they should make domestic workers aware that the telephone number for police and emergency services is 911, and that the U.S. Department of Health and Human Services maintains a telephone hotline for reporting abuse of domestic employees, which is available on their website.
The recent advisory from the DOS is helpful to protect B-1 domestic attendant employees, since many of them tend to be relatively uneducated, with little or no understanding of the U.S. laws governing and protecting them while they are in the United States. It prevents abuse of a system meant to benefit various parties and provides the umbrella of protections available under U.S. laws.
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