U.S. citizens and certain non-immigrant employers temporarily in the U.S. may, under certain conditions, be able to bring their personal and domestic employees to work for them on a B-1 visa.
A B-1 visa is a visitor’s visa available to aliens who are visiting the U.S. temporarily for business and have a residence in a foreign country that they have no intention of abandoning.
These domestic employees include nannies, child monitors, au pairs, cooks, general houseworkers, drivers, gardeners, caregivers and butlers.
For U.S. citizens to qualify to bring their domestic employees to work temporarily for them in the U.S., they must show that they maintain a permanent residence abroad and are only temporarily assigned in the U.S. This could be shown by frequent international transfers lasting two or more years as a condition of the job and must be returning to the U.S. for a stay of no more than four years. This is usually the case for U.S. expatriates or diplomats.
Non-immigrants in valid B, E, F. H-1, J, L, M, O, P, Q,R or TN statuses may also be eligible to petition for an accompanying or “following to join” personal or domestic employee under a B-1 visa.
It is vital to document a temporary employment relationship between the petitioning employer and the prospective B-1 domestic employee.
The employer must establish either a pre-existing employment relationship between him/her and the prospective B-1 domestic employee for at least six months prior to the employer’s admission into the U.S. or that he/she she regularly employed a domestic or personal employee in the same capacity as that intended for the applicant.
There must be an employment contract between the U.S. employer and the B-1 employee clearly stating the terms and conditions of the employment, signed and dated by both parties.
For this contract to be a valid basis of granting the B-1, the contract must provide certain guarantees and provisions.
First, the employee must be provided with free room and board while in the U.S. and a round trip airfare.
Second, the employee will be paid the minimum wage or the prevailing wage, whichever is higher, for an eight-hour work-day.
Third, other employee benefits normally provided to U.S. personal or domestic workers must be given.
Lastly, if their services will be terminated, the employer must give at least two weeks notice of his or her intent to terminate the employment.
On the part of the B-1 applicant, he or she must also establish strong “ties” to his/her home country and has a permanent residence abroad which he/she does not intend to abandon in order to overcome the presumption that he/she will remain in the U.S. permanently.
The B-1 personal or domestic employee is not allowed to seek employment elsewhere. To ensure this, the employment contract must also stipulate that the employee will neither be working for other employers nor accept any other employment while working for the employer in the U.S. for the duration of his/her B-1 status. Even incidental work such as accepting baby-sitting jobs for other employers will be a violation of the contract.
The initial admission of the B-1 visitor is limited to a maximum of one year but it can be extended in increments of six months per extension.
Before the B-1 employee will be allowed to work for the employer in the U.S., he/she is required to apply for employment authorization document (EAD) upon arrival in the U.S. He or she cannot begin to work until the EAD is granted by the United States Citizenship and Immigration Services (USCIS).
To ensure continuity of services and validity of the B-1 status, the employer must anticipate to request its extension before it expires. It is important to do so since the processing for the EAD takes about 90 to 120 days.
For domestic employees of certain non-immigrants (non-U.S. citizens), the requirements for sponsoring a B-1 domestic are quite similar. However, the validity of the B-1 visa issued to the domestic employee may not exceed the validity of the visa issued to the non-immigrant employer.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com