B-1 Visas for Personal Employees/Domestic Workers of Nonimmigrants
U.S. immigration regulations allow personal employees or domestic workers to enter and work in the United States under B-1 status if they are following or accompanying a foreign national who is entering, or already in, the U.S. in nonimmigrant status. This category for domestic employees includes, but is not limited to, cooks, butlers, chauffeurs, housemaids, valets, footmen, nannies, mothers’ helpers, gardeners, and paid companions.
Personal employees or domestic workers may accompany or later join an employer who is who is seeking admission into, or is already in the United States. The employer must hold valid B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant status. To qualify for B-1 status, the domestic worker must demonstrate that the following requirements have been met:
- The employee has a residence abroad they have no intention of abandoning (notwithstanding the fact that the employer may be in a nonimmigrant status which does not require such a showing);
- The employee has at least one year’s experience as a personal employee or domestic worker;
- The employee has been employed by the employer as a domestic worker for at least one year prior to the date of the employer’s admission to the U.S. Alternatively, if the employee-employer relationship existed immediately prior to the time of the visa application, the employer may show that they have regularly employed (either year-round or seasonally) domestic workers over a period of several years;
The employee must be able to present a valid employment contract which has been signed and dated by the employer and employee. The contract must include specific provisions, including (but not limited to) the following:
- The employee will receive the greater of the minimum or prevailing wage under U.S. federal, state, or local law for an eight-hour work day;
- The employer will provide the employee with free room and board in the U.S. and round trip airfare;
- A certification that both parties understand that the employee cannot be required to remain on the premises after working hours without compensation;
- The employer will be the only provider of employment to the employee;
The employment contract must reflect any other benefits normally required for U.S. domestic workers in that area of employment.
There are several steps involved with B-1 cases for domestic workers. First, the Berardi team will prepare a detailed B-1 application packet addressing the employee’s qualifications for B-1 status. Our attorneys will provide guidance on the documentation needed from the employer and domestic employee to prove eligibility, and we will assist with the employment contract if needed.
The domestic employee will use this packet to apply for a visa and entry into the U.S. The Berardi team will then schedule a visa appointment for the employee at a U.S. Embassy or Consulate abroad. There, the employee will present the B-1 application packet to the consular officers and discuss their qualifications. Upon approval, the employee’s passport will be returned in 3-5 business days with the B-1 visa. The B-1 visa may be granted anywhere from a six month to 10-year period, at the discretion of the interviewing officer. Upon receipt of the B-1 visa, the employee may enter the U.S. as a visitor and will be admitted to the U.S. for up to a six-month period.
Upon admission to the U.S. in B-1 status, the employee must then apply for an Employment Authorization Card (Form I-765, Application for Employment Authorization). The Berardi team will assist with this application. The amount of time it takes for an EAD card to be issued is dependent on current government processing times and can range from 3-9 months (subject to change). The EAD card will be limited to the expiration date of the employee’s I-94 admission period provided at the time of entry to the U.S.
Upon receipt of the EAD card, the employee may apply for a U.S. social security number and receive salary from a U.S. source. Domestic employees in B-1 status are subject to the same taxation obligations as any U.S. wage earner, and they are granted the same worker protections (see Fair Labor Standards Act) as U.S. workers.
Domestic workers are only permitted to work for their employer in the capacity outlined in the employment contract. If an employee violates their B-1 status, it could lead to serious long-term immigration consequences.
Maintaining B-1 Employee’s Status
An employee on a B-1 visa is typically granted an initial period of entry of 6-12 months. The employee can apply for an extension of status (Form I-539, Application for Extension of Status) in increments of six months, which can be filed with a renewal of the Employment Authorization Card.
The accrual of unlawful presence in the U.S. can have serious consequences on their ability to return to the U.S. in the future. It is critically important that the employee track the expiration dates of their visa, I-94 admission period, and EAD card. All will likely have varying expiration dates and must be closely monitored. It is important to keep the Berardi team appraised of the B-1 worker’s international travel plans or need to stay physically present in the U.S. for extended periods.
Green Card Holders and Diplomat Employers
U.S. Lawful Permanent Residents (Green Card holders) are not permitted to bring their domestic workers to the United States on a B-1 visa.
Domestic employees accompanying or following to join an employer who is a foreign diplomat or government official may be eligible for an A-3 or G-5 visa, depending upon their employer’s visa status.
Berardi Immigration Law
Berardi Immigration Law regularly helps domestic employees obtain B-1 status. Our lawyers provide an individualized approach for each client. If you are interested in bringing a personal employee or domestic worker into the United States, be sure to contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!