Nonimmigrants Hiring Foreign Domestic Attendants07 Sep 2016
Originally posted 18.Jul.2003, this MurthyDotCom NewsBrief remains relevant, and is published again 07.Sep.2016 as a reminder to our readers.
The use of domestic workers, such as live-in maids or nannies, tends to be less common in the United States than it is in many other parts of the world. Foreign nationals planning to come to the United States, in addition to U.S. citizens living abroad, may seek to be accompanied by their domestic attendants or household help, under certain limited circumstances. Many may be surprised to learn that this is possible, provided certain conditions are met.
B-1 Status and EAD for Domestic Attendants
Those familiar with the B-1 category generally associate this nonimmigrant category as being suited for business visitors, and not as a means for securing work authorization. In most situations, this is correct. However, qualified candidates may apply for a specially annotated B-1 visa as a domestic attendant. Once admitted in B-1 status, such individuals can obtain an employment authorization document (EAD) for purposes of working as a personal or domestic attendant (sometimes referred to as a “domestic servant”) of the sponsoring individual.
Separate Requirements for Diplomats, Others
There are separate provisions allowing certain foreign nationals, such as diplomats, employees of foreign governments, and employees of NATO, to sponsor domestic attendants. However, these types of applications are governed by a different set of laws and regulations that is beyond the scope of this article.
Domestic Attendants for Nonimmigrants
A foreign national may be eligible to be sponsored for a B-1 visa as a personal attendant if the individual’s employer is in the United States, or will be entering the U.S., in one of the following nonimmigrant visa categories: B, E, F, H, I, J, L, O, P, Q, R, or TN. In addition, the following criteria must be met:
- The applicant has a residence abroad that s/he has no intention of abandoning.
- The applicant has at least one year of experience as a personal or domestic employee.
- The applicant has been employed abroad by the qualifying nonimmigrant employer as a domestic attendant for at least one year prior to the date of the employer’s admission to the United States; or, in the alternative, the employer can demonstrate that s/he has regularly employed personal or domestic employees.
- The employer and the applicant have signed an employment contract which states that the employee is guaranteed the minimum or prevailing wage, whichever is greater, and free room and board, and the employer will be the only provider of employment to the employee.
- The employer must pay the domestic’s initial travel expenses to the United States, and subsequently to the employer’s onward assignment, or to the employee’s country of normal residence upon termination of the assignment.
Domestic Attendants for U.S. Citizens
Not all U.S. citizens can sponsor a foreign national for a domestic attendant position. Rather, only those U.S. citizens who are permanently residing abroad or who frequently are stationed abroad for long-term assignments are potentially eligible to sponsor B-1 attendants. The requirements for applying as the domestic attendant of a U.S. citizen are similar, although not identical, to the requirements for a B-1 attendant of a nonimmigrant. Lawful permanent residents (i.e. “green card” holders), on the other hand, are not permitted to sponsor B-1 attendant workers.
EAD Must be Approved Before Commencing Work
As mentioned above, the B-1 attendant must obtain an EAD prior to commencing employment. Strangely enough, however, the EAD application cannot be filed until after the B-1 attendant enters the United States. The U.S. Citizenship and Immigration Services (USCIS) generally takes 60 to 90 days to process such an application, and there is no provision in the law for the attendant to begin work while the EAD application is pending. This can present a difficult situation for the attendant and the employer, as it means the attendant will likely be in the United States for 2 to 3 months, during which time the individual is prohibited from working.
Procedure at Consulate
The intending B-1 attendant must first request the visa from the consulate in a process similar to applying for an ordinary B-1 business visa. However, because the B-1 attendant visa has a number of specific requirements and is used relatively infrequently at most consulates, the applicant would be well-advised to present the consular officer with a prepared package that clearly establishes the legal basis for the B-1 attendant visa. Applicants are encouraged to consult with a qualified attorney for assistance with preparing such a package.
Duration of B-1 Attendant Status and EAD
A B-1 attendant may be initially admitted to the United States for up to one year. Extension requests subsequently can be granted in increments of up to 6-months. The EAD, once issued, will be limited to the period of validity of the B-1 status. This, too, presents a logistical challenge, as the B-1 attendant will be subject to a perpetual state of B-1 extension applications and EAD renewal applications for the duration of the employment.
B-1 attendants require intensive oversight to ensure that they maintain legal status and employment authorization. However, the B-1 attendant visa may be a viable option for those accustomed to the assistance of trusted domestic attendants / workers. Nonimmigrants and U.S. citizens who wish to sponsor an employee for a B-1 domestic attendant visa are welcome to contact an attorney at the Murthy Law Firm for assistance in preparing an application package.
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