Visa Opportunities for Household and Domestic Attendants
Posted Jul 18, 2003
The use of domestic attendants is much more common in other countries than in the U.S. Frequently, foreign nationals planning to come to the U.S. seek advice from our Office about their domestic attendants or household help and whether these employees may accompany them to the U.S. We intend to shed some light and on a provision that is used infrequently, but which may prove to be very helpful if one is willing to follow certain procedures and satisfy the legal criteria for eligibility.
B-1 Status Available for Domestic Attendants
The three most common attendants recognized under law are outlined below, but only those accompanying certain diplomats and officials of international organizations qualify under this definition. Most relevant and beneficial to MurthyDotCom and MurthyBulletin readers are the following two categories of applicants: (a) those on nonimmigrant status like F-1, H1B, L-1, and E-1 status or (b) those who are U.S. citizens living abroad, returning temporarily to the U.S. This category of domestic help or attendant is called the B-1 attendant visa.
Nonimmigrants Who May Apply for B-1 Attendants
An attendant is eligible for the B-1 visa if her or his employer seeks, or is presently in the U.S. in, a qualifying nonimmigrant visa category. The categories of qualifying nonimmigrants who may legally apply for the B-1 visa for their domestic attendants are those who are on: B, E, F, H, I, J, L, or TN status.
Criteria to Apply for B-1 Attendant Visa
First, the B-1 attendant must demonstrate that s/he has worked for the employer for at least 1 year abroad. Alternatively, if s/he has worked for the employer for less than one year, the B-1 attendant must have at least one year of prior experience working as a servant. In the second case, the B-1 attendant must have worked as a domestic servant for the employer for at least some period of time to qualify for the B-1 attendant visa.
Second, the B-1 attendant must prove nonimmigrant intent. This is demonstrated, as with all pure nonimmigrant visa applications, by showing strong ties to the home country, such as maintaining a residence abroad that s/he has no intention of abandoning. Where the employer’s visa classification allows for dual intent, and the employer is pursuing an application for permanent residence, the B-1 attendant may have difficulty establishing that his or her intent is to remain in the U.S. temporarily. Once the employer obtains permanent resident status, that person is no longer eligible to use the services of the B-1 attendant.
Payment of Minimum Wage or Prevailing Wage
There must be a signed employment contract, which guarantees the greater of the prevailing wage or the minimum wage. The employer is also obligated to provide free room and board, and the employer must stipulate that s/he will be the sole provider of employment for the B-1 attendant.
EAD Requirement
Unlike the A-3, G-5, and NATO7 attendant visas described below, a B-1 attendant requires an Employment Authorization Document (EAD). The EAD must be obtained prior to commencing employment, yet it cannot be filed until after the B-1 attendant enters the U.S. This presents a difficult situation for the attendant. Immediately upon arriving in the U.S., the B-1 attendant is not authorized to begin work with the sponsoring family employer. Instead s/he must file an EAD application, which currently takes at least 60 – 90 days to process. Upon approval of the EAD application, the attendant is authorized to begin working legally. Unfortunately, there is no provision in the law for the attendant to begin work while the EAD application is pending.
Procedure at Consulate Abroad
The intending B-1 attendant must first request the visa from the consulate in a process similar to requesting an ordinary B-1 Business visa. However, because the B-1 attendant visa is used relatively infrequently, the applicant would be well advised to present the Consular Officer with a prepared package from his/her attorney that clearly establishes the legal basis for the B-1 attendant visa. Upon arrival and admission to the U.S., the applicant must file the EAD application and, once filed, s/he must wait the 60-90 days it takes to obtain the EAD before beginning work.
Duration of B-1 Attendant Status
In all other aspects, the B-1 attendant visa is like any other B-1 visitor for Business. The validity of the B-1 attendant’s visa may not exceed the validity of the employer’s visa, though, generally, most B-1s are granted for only shorter periods. The B-1 visa is limited to an initial admission of one year, with six-month extensions, and the EAD will be limited to the period of validity of the B-1 visa (1 year, initially, 6 months after each request for extension). This, too, presents a logistical challenge in maintaining the validity of the visa and EAD. A B-1 attendant will be subject to a perpetual state of B-1 extension applications (maximum of 6 months) and EAD renewal applications (which will be limited to the same 6 months of validity) for the duration of the employment.
File Timely Extensions of B-1 and EAD
Once the EAD is issued, the B-1 attendant is authorized to commence work for the balance of the first year. Thereafter, an application for extension of the B-1 visa and EAD renewal will be required. The extension and renewal applications should be filed concurrently to ensure that the BCIS processes the extension and EAD renewal simultaneously, in order to avoid future gaps in employment eligibility for the B-1 attendant.
Other Visa Categories Available for Domestic Attendants
There are three expressly designated visa categories for personal or household domestic attendants: “A-3” (attendants of foreign government official Ambassadors, Public Ministers, Career Diplomats, or Consular Officers), “G-5 “(attendants of foreign government officials to International Organizations), “NATO7” (attendants of North Atlantic Treaty Organization Representatives). An attendant who qualifies for one of these visa categories enjoys the advantage of employment incident to status. Therefore, s/he is not required to obtain an employment authorization document (EAD). In addition, A-3, G-5, and NATO7 visa holders are admitted for an initial period of three years and may be granted extensions in two-year increments. However, the A-3, G-5, and NATO7 are highly restrictive visa categories, available only to a small class of attendants with principals who work for the foreign government or a qualifying international organization, etc.
Overview of Issues for B-1 Attendants
B-1 attendants require intensive oversight to ensure that they maintain legal status and authorization for employment. However, the B-1 attendant visa is a viable option for families accustomed to the assistance of their domestic attendants and for whom a separation would be impractical. Given the tight market for domestic attendants and “nannies,” it is unlikely that a foreign national would be able to find a suitable replacement domestic attendant in the U.S. Moreover, if the individual had been a long-time family employee, s/he has the advantage of familiarity with the family's habits and preferences. There are also cultural and language issues that may make it more practical to have a domestic attendant from one's home country. The key is to successfully present the case to obtain and, thereafter, maintain one's domestic attendant’s B-1 status and employment eligibility in the U.S. Hopefully, the expense of the repeated extension and renewal petitions is less than the expense that a foreign national would face in hiring domestic help in the U.S., though the requirement to pay the higher of the minimum wage or prevailing wage may make it unlikely that many will be able to take advantage of the B-1 attendant visa for their domestic help.© The Law Office of Sheela Murthy, P.C.
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