Visa Options for Domestic Workers

by Elizabeth Brettschneider


For busy families living in the United States, hiring a person to help out in their home, such as a childcare worker or housekeeper, is a common desire. Despite popular belief, however, there are not many visa options for immigrants who want to come to the US to work in a private household. There are a few nonimmigrant visas that are available in limited circumstances, which will be discussed below; however, families wishing to hire without restrictions may be disappointed by the limitations. 

B-1

The B-1 visa is a general visitor visa but the regulations include provisions for those coming to work in the US as domestic workers under limited circumstances. The regulations allow US citizens to bring domestic workers temporarily for their household only if those domestic staff worked with the US citizen while they were stationed abroad for a long-term assignment. In other words, US citizens who are permanently residing abroad or who are stationed abroad for long-term assignments are able to “sponsor” domestic staff who work with them abroad on a B-1 visa so that their staff can accompany them to the US for a temporary stay in the US.   

Lawful permanent residents (i.e., “Green Card” holders) are not permitted to “sponsor” B-1 domestic workers at all. This is because lawful permanent residents are required to maintain their residence status in the US and cannot have the intent to remain only temporarily in the US or to live permanently outside the US which is in contradiction to the intent the domestic worker would need to demonstrate in order to be eligible for the B-1. The intent of the employer is applied to the domestic worker. Thus, lawful permanent residents cannot bring domestic workers to the US using the B-1, even if it is for a temporary period.

Foreign nationals who themselves are on temporary nonimmigrant visas such as B, E, F, H, I, J, L, O, P, Q, R, and TNs are eligible to have their domestic workers join them in the US using a B-1 visa . For that to happen, the following must be true:

  • The B-1 applicant (domestic worker) has a residence abroad that they have no intention of abandoning;
  • The B-1 applicant (domestic worker) has at least one year of experience as a personal or domestic employee;
  • The B-1 applicant (domestic worker) has been employed abroad in the home of their nonimmigrant employer for at least one year prior to the date of the employer’s admission to the US; or, in the alternative, the employer can demonstrate that they have regularly employed personal or domestic staff;
  • The employer and the B-1 applicant (domestic worker) have signed an employment contract which states that the domestic worker 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 domestic worker; and
  • The employer must pay the domestic worker’s initial travel expenses to the US, and subsequently to the employer’s onward assignment, or to the domestic worker’s country of normal residence upon termination of the US assignment.

A B-1 domestic worker may be initially admitted to the US for up to one year. Extension requests subsequently can be granted in increments of up to six months. A very important factor, however, that cannot be overlooked is that B-1 domestic workers are not allowed to work in the US until they are granted work authorization through an employment authorization document (EAD) issued by US Citizenship & Immigration Services (USCIS). Once in the US, they must apply for this documentation by submitting an I-765 application to USCIS. The EAD generally takes ninety days to be adjudicated. Once issued, it will be limited to the period of validity of the B-1 status. Thus, logistically this procedure can make it challenging to keep the B-1 with continuous work authorization in the US, as the B-1 will be subject to continual B-1 extension applications and EAD renewal applications for the duration of the employment.

J-1 Au Pair

There is another limited way that some people may be able to bring a foreign national into their home, at least to help with childcare, and that is through the au pair program under the J-1 visa. The J-1 allows a household to hire an au pair to care for their child(ren) and the au pair, in turn, can study while gaining childcare experience. J-1 applications are not filed with USCIS at their service locations domestically but instead are obtained through the State Department. The State Department has licensed numerous companies to vet J-1 applicants and the US households in which they intend to work. These companies then become the “sponsors” for the J-1 visa.  

The J-1 visa allows an au pair foreign national to live with a family for twelve months, with the option to extend six, nine, or twelve more months. They must receive a minimum of thirty-two hours of childcare training before starting on the J-1. Once in the US, they can provide up to ten hours a day (no more than forty-five hours a week) of childcare and must complete at least six hours of academic credit at an accredited US post-secondary educational institution. The J-1 au pair must be compensated by the family for which they work, up to $500 toward the cost of required academic course work as well as room and board and compensation for childcare work.

In order for au pairs to qualify for the J-1, they must be:

  • Proficient in spoken English;
  • A secondary school graduate or equivalent;
  • Between eighteen-and-twenty-six-years-old;
  • Capable of fully participating in the program as evidenced by the satisfactory completion of a physical;
  • Personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and
  • Successful in passing a background investigation that includes verification of school, three non-family related personal and employment references, a criminal background check or its recognized equivalent, and a personality profile. The personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.

In order for a family to host an au pair, they are required to:

  • Pay up to $500 toward the cost of the au pair’s required academic course work;
  • Provide a suitable private room and three meals a day for the au pair;
  • Be US citizens or legal permanent residents fluent in spoken English;
  • Pay a weekly minimum stipend based on the program option selected;
  • Give the au pair one complete weekend off each month (Friday evening to Monday morning);
  • Facilitate the au pair’s requirement to enroll in and attend an accredited post-secondary institution to fulfill the educational requirement;
  • Provide a minimum of two weeks paid vacation for each twelve month exchange term (prorated for extension periods of six or nine months), in addition to regular weekly/monthly time off;
  • Include the au pair whenever possible in family meals, outings, holidays and other events; and
  • Sign an agreement with the au pair detailing the au pair’s obligation to provide childcare.

Au pairs cannot be placed:

  • With a family who has an infant less than three months old unless a parent or other responsible adult is at home;
  • In homes with children under two years of age unless the au pair has at least 200 hours of documented infant childcare experience;
  • In families with a special needs child(ren), as identified by the family, unless the au pair has identified  their prior experience, skills, or training in the care of special needs children and the host family has reviewed and acknowledged the au pair’s prior experience, skills, or training in writing; and
  • In the homes of relatives.

There is also an option for au pairs who want to focus a bit more on education than childcare while in the US called EduCare. EduCare applies to families that require childcare before and after school. The EduCare Au Pair may work no more than ten hours per day, and a maximum of thirty hours per week. Au pairs participating in the EduCare component receive seventy-five percent of the weekly rate paid to non-EduCare participants. EduCare au pairs must complete a minimum of twelve hours of academic credit or its equivalent during the program year. The host family is required to provide (up to) the first $1,000 toward the cost of the au pairs required academic course work.

Green Card

As the above options demonstrate, there are not many short-term options for domestic workers. For a permanent option, an employer could sponsor their domestic worker for lawful permanent residency but the time that the application process takes, including the government backlogs, make it a feasible option for very few.

Sponsoring a worker for lawful permanent residency requires an employer to test the US labor market by advertising in good faith to see if there are any US workers able and willing to do the job. The application is filed first with the Department of Labor. If approved, another application is filed with USCIS to prove that the household is financially stable enough to support the domestic worker and that the particular domestic worker being sponsored is qualified for the job as advertised to the US workers. If that application is approved, the foreign national can then apply for lawful permanent residency either at a US Embassy/Consulate in their home country or if they are already lawfully in the US, at USCIS.

This is a simplification of what can be a time-consuming and frustrating process. For the duration of the Green Card application process, the foreign national being sponsored would have to maintain a lawful status in the US while they wait for the approval of the Green Card application, or alternatively remain abroad until the Green Card could be issued. (Timing could be approximately a year or two but can be much more if the foreign nationals are from a country whose applicants have a long wait for a Green Card because of limited immigrant visa availability). This is not often practical for a family wanting immediate and uninterrupted help in their home.

All in all there are not many immigration options for families wanting to hire foreign nationals to work in their home. In my opinion, Congress needs to reform the immigration law so that it offers more viable solutions for families looking for help. The lack of options for domestic workers is one of the disappointments of our immigration system.