Bringing Domestic Help/Domestic Servants in US - including cooks, butlers, maids, nannies, etc

Jagbir Singh Terkiana

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Immigration Attorney

Contributor Level 14

Posted 4 months ago. 2 helpful votes

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This guide discusses the potential issues, limitations, and related law on bringing domestic help to US. *Please note - This is not a Legal Advise and does not create any attorney-client relationship. Consult an attorney before hiring a foreign worker - to ensure compliance with the regulations.

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I. Introduction

While Foreign Dignitaries and International Organization Representatives can bring domestic servants under A, G, and NATO-7 visa classifications, the others have limited options under B visa. This memo discusses, the options of US Citizens and certain other visa holders to bring Domestic Servants to US, as is divided into three parts: I. The Eligibility Requirements; II. Explanation; and III. The Applicable Law.

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II. Eligibility Requirements

Divided under two broad headings: (A.) Employer's Eligibility (Who can bring Domestic Servants); and (B.) Domestic Servant's Eligibility (Who can come in as a Domestic Servant)

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_ (A.) Employer's Eligibility (Who can bring Domestic Servants)

_ Divided under three subheadings 1. US Citizens, 2. Non-Immigrant Visa Holders, 3. Green Card Holders/Permanent Residents

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_ _1. US Citizens:

_ _U.S. citizen employer who has a permanent home or is stationed in a foreign country, and who is temporarily visiting US. The requirements include: ? The U.S. employer normally works abroad; ? The U.S. employer is returning to the United States for no more than 4 years; ? The employee can demonstrate at least one year experience as a domestic or domestic employee by producing statements from previous employers attesting to such experience; and, ? The employee has been employed abroad by the employer as a domestic employee for at least six months prior to the date of admission to the United States or, in the alternative, the employer has, while abroad, regularly employed a domestic employee in the same capacity as that intended for the applicant.

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_ _2. Non-Immigrant Visa Holders:

_ _Employer who seeks admission into, or is already in, the United States in a B, E, F, H, I, J, L, or TN non-immigrant classification.

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_ _3. Green Card Holders/Permanent Residents:

_ _Since Permanent Residents cannot establish that their stay in US is temporary, they are not eligible to bring in Domestic Servants

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_ (B.) Domestic Servant's Eligibility (Who can come in as a Domestic Servant)

_ Three Requirements: 1. No intention of abandoning permanent residence abroad 2. At least 1 year of experience as a personal or domestic servant 3. Employed abroad by sponsoring employer for at least 1 year prior to the employer's admission into the United States. If employed by sponsoring employer for less than 1year, the employer must show that while abroad, he or she has regularly employed a domestic servant in the same capacity as that intended for this particular employment

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III. Explanation

Divided under two broad headings: (A.) Employer's Eligibility (Who can bring Domestic Servants); and (B.) Domestic Servant's Eligibility (Who can come in as a Domestic Servant)

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_ (A.) U.S. Citizen Employer or Nonimmigrant Visa Holder Employer

_ Domestic Servants must be able to show that they intend to return to their residence outside the U.S. at the end of their tenure. Therefore, Permanent resident alien employers cannot use the B-1 visa category for their personal or domestic servants, because permanent resident aliens are by definition permanently residing in the U.S. and there is nothing to indicate that their servants will remain here temporarily.

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_ _1. US Citizen Employers

_ _US Citizen Employers may qualify their servants for B-1 status under several different circumstances: - Citizens with a permanent home abroad, or on assignment abroad, may obtain B-1 status for their servants during temporary trips to the United States. The periods of stay in the United States should generally be for six months or less for the servant to qualify for B-1 status, and the servant must have commenced employment for the citizen prior to the U.S. visit. - Citizens who are temporarily assigned to the U.S. can bring their servants with them, provided they are subject to frequent international transfers and are returning to the U.S. for no more than four years as a condition of their employment. The servant must have been employed abroad by the employer for at least six months prior to admission to the United States and must have one year of paid experience as a servant. In addition, the employer must produce an employment contract which provides the servant with free private room and board, guarantees the "prevailing wage" as defined by the Department of Labor (DOL) for the area of intended employment, and provides either party two weeks' notice of termination of the employment relationship.

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_ _2. Nonimmigrant Visa Holder Employer

_ _For non-immigrant aliens to bring their servants to the U.S., the servant must have been employed by the alien for at least one year prior to the date of the alien's admission to the U.S., or the alien employer must have used servants regularly over a period of several years, the servant in question must be able to document at least one year's experience, and the employment relationship must have commenced prior to the alien's entry to the U.S.

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_ (B.) Domestic Servant to Apply for Work Authorization in US

_ Because these aliens will engage in employment in the United States, they must obtain explicit permission to work from USCIS after they are admitted to the United States and before they commence employment. Application for employment authorization document (EAD) is made on Form I-765. With regard to B-1 domestic servants of nonimmigrant employers, enter the designation "(c)(17)(i)" in Item 16 of the form. With regard to B-1 domestic servants of U.S. citizen employers, enter the designation "(c)(17)(ii)" in Item 16 of the form. These designations have changed from the prior version of the form, when they were both covered by (c)(17)(i). For assistance with these forms, and subsequent renewals and filings, please contact us.

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IV. Applicable Law

All the requirements have already been explained above. For your information, we are also enclosing the two applicable regulations 8 CFR Sec. 274a.12(c)(17) and 9 FAM 41.31 N9.3.

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_ (A.) 8 CFR Sec. 274a.12(c)(17)

_ Per 8 CFR Sec. 274a.12(c)(17) Aliens who must apply for employment authorization: A nonimmigrant visitor for business (B-1) who: (i) Is a personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States as a nonimmigrant defined under sections 101(a)(15)(B) , (E), (F), (H), (I), (J), (L) or section 214(e) of the Act. The personal or domestic servant shall have a residence abroad which he or she has no intention of abandoning and shall demonstrate at least one year's experience as a personal or domestic servant. The nonimmigrant's employer shall demonstrate that the employer/employee relationship has existed for at least one year prior to the employer's admission to the United States; or, if the employer/employee relationship existed for less than one year, that the employer has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the employer's admission to the United States; (ii) Is a domestic servant of a United States citizen accompanying or following to join his or her United States citizen employer who has a permanent home or is stationed in a foreign country, and who is visiting temporarily in the United States. The employer/employee relationship shall have existed prior to the commencement of the employer's visit to the United States; or (iii) Is an employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to classification under section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who is precluded from such classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality.

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_ (B.) 9 FAM 41.31 N9.3

_ Divided into 4 parts: (1.) 9 FAM 41.31 N9.3-1; (2) FAM 41.31 N9.3-2; (3.) FAM 41.31 N9.3-3; and (4) ---- 9 FAM 41.31 N9.3-4

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_ _(1.) 9 FAM 41.31 N9.3-1 Personal/Domestic Employees of U.S. Citizens Residing Abroad

_ _Personal or domestic employees who accompany or follow to join U.S. citizen employers who have a permanent home or are stationed in a foreign country and who are visiting the United States temporarily. The employer-employee relationship existed prior to the commencement of the employer's visit to the United States, provided that you are satisfied that: (1) The employee has a residence abroad which he or she has no intention of abandoning; (2) The alien has been employed abroad by the employer as a personal or domestic servant for at least six months prior to the date of the employer's admission to the United States; (3) In the alternative, the employer can show that while abroad the employer has regularly employed a domestic servant in the same capacity as that intended for the applicant; (4) The employee can demonstrate at least one year experience as a personal or domestic servant by producing statements from previous employers attesting to such experience; and (5) The employee is in possession of an original contract or a copy of the contract, to be presented at the port of entry, which contains the original signatures of both the employer and the employee. b. The required employment contract has been signed and dated by the employer and employee and contains a guarantee from the employer that, in addition to the provisions listed in item (5) above, the employee will receive the minimum or prevailing wages whichever is greater for an eight hour work-day. The employment contract must also reflect any other benefits normally required for U.S. domestic workers in the area of employment. The employer will give at least two weeks' notice of his or her intent to terminate the employment, and the employee need not give more than two weeks' notice of intent to leave the employment.

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_ _(2.) 9 FAM 41.31 N9.3-2 Personal/Domestic Employees of U.S. Citizens on Temporary Assignment in United States

_ _a. Personal or domestic employees who are accompanying or following to join U.S. citizen employers temporarily assigned to the United States provided you are satisfied that: (1) The employee has a residence abroad which he or she has no intention of abandoning; (2) The alien has been employed abroad by the employer as a personal or domestic servant for at least six months prior to the date of the employer's admission to the United States; (3) In the alternative, the employer can show that while abroad the employer has regularly employed a domestic servant in the same capacity as that for the applicant; (4) The employee can demonstrate at least one year experience as a personal or domestic servant by producing statements from previous employers attesting to such experience; and (5) The employee is in possession of an original contract or a copy of the contract, to be presented at the port of entry, which contains the original signatures of both the employer and the employee. b. The U.S. citizen employer is subject to frequent international transfers lasting two years or more as a condition of the job as confirmed by the employer's personnel office and is returning to the United States for a stay of no more than four years. The employer will be the only provider of employment to the domestic employee and will provide the employee free room and board and a round trip airfare as indicated under the terms of the employment contract; and c. The required employment contract has been signed and dated by the employer and employee and contains a guarantee from the employer that, in addition to the provisions listed in item (b) above, the employee will receive the minimum or prevailing wages whichever is greater for an eight hour work-day. The employment contract must also reflect any other benefits normally required for U.S. domestic workers in the area of employment. The employer will give at least two weeks' notice of his or her intent to terminate the employment, and the employee need not give more than two weeks' notice of intent to leave the employment.

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_ _(3.) FAM 41.31 N9.3-3 Personal Employees of Foreign Nationals in Nonimmigrant Status

_ _A personal or domestic employee who accompanies or follows to join an employer who is seeking admission into, or is already in, the United States in B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant status, must meet the following requirements: (1) The employee has a residence abroad which he or she has no intention of abandoning (notwithstanding the fact that the employer may be in a nonimmigrant status which does not require such a showing); (2) The employee can demonstrate at least one year's experience as a personal or domestic employee; (3) The employee has been employed abroad by the employer as a personal or domestic employee for at least one year prior to the date of the employer's admission to the United States; OR If the employee-employer relationship existed immediately prior to the time of visa application, the employer can demonstrate that he or she has regularly employed (either year-round or seasonally) personal or domestic employees over a period of several years preceding the domestic employee's visa application for a nonimmigrant B-1 visa; (4) The employer and the employee have signed an employment contract which contains statements that the employee is guaranteed the minimum or prevailing wages, whichever is greater, and free room and board, and the employer will be the only provider of employment to the employee; (5) 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 at the termination of the assignment.

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_ _(4.) 9 FAM 41.31 N9.3-4 Personal Employees/Domestics of Lawful Permanent Residents (LPRs)

_ _Personal employees of all lawful permanent residents (LPRs), including conditional permanent residents and LPRs who have filed a Form N-470, Application to Preserve Residence for Naturalization Purposes, must obtain permanent resident status, as it is contemplated that the employing LPR is a resident of the United States.

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V. Conclusion

Bringing a domestic servant to US requires strict compliance with USCIS, CBP, and DOL regulations. In addition to these regulations several other contract and employment law regulations might apply. Consult an attorney before hiring a foreign worker - to ensure compliance with these complex regulations. For any questions relating to bringing Domestic Servants in US, please do not hesitate to contact this author.

Additional Resources

8 CFR Sec. 274a.12(c)(17) 9 FAM 41.31 N9.3

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