Traveling to the US with a domestic worker or caregiver is allowed if the sponsor (employer) obtains a B-1 visa by satisfying all the criteria1, and upon arrival in the US completes the employment authorization processes including tax registrations, banking details for wages, and honors the employment contract. It seems simple enough – but – DIY applicants fail at a high rate – when unprepared. The technical requirements can be addressed in most instances.
However, the suspicion of human trafficking which attaches to this visa classification is considerable – and will result in a rejection even when all other criteria appear satisfied. Such a fear can also result in a criminal referral to local law enforcement. The suspicion will remain even when the visa is issued since airline personnel and border control authorities are all trained and sensitized to indicia of human trafficking. Prepare and plan understanding that new reality.
Summary – B Visa Will Allow A Domestic Worker to Accompany The Sponsor (Employer) To The US
Entry to the US, and working while inside the US, is authorized for certain domestic workers, personal assistants, or caregivers (“domestic workers”) accompanying or following to join U.S. citizens who have a permanent home or are stationed in a foreign country, or non-immigrant US visa holders in individuals in a B, E, F, H, I, J, L, or TN non-immigrant classifications. The rules are not DIY friendly, and there are several legal obligations that follow the sponsor and the domestic worker once inside the US. Failure to satisfy all the requirements can lead to an immigration ban, liability for civil and criminal laws relating to taxation, labor regulations, and social security participation obligations.
Domestic Workers/Caregivers 2 – How To Qualify For B Visa
The applicant domestic worker typically works for an employer who is frequently assigned overseas for two or more years and is coming to the US for a “temporary” purpose. If the employer (and domestic worker) qualifies then the B-1 visa status of the domestic worker engaged in such work authorizes such “employment” or “labor for hire” within the United States.3 The duration of the B-1 stay in the US is not more than 6 months consecutive; maximum total amount of time permitted in B-1 status on any one trip is generally 1 year if a timely extension is granted (in advance). Typically, the domestic worker must leave the US every 6 months to avoid a visa overstay and subsequent revocation. Review the following:
• Domestic Worker Qualifications –
- The B-1 domestic worker must have one (1) year of experience; be at least 16 years old, and may not be a family member of the employer.
- Domestic worker visa applicants (like most non-immigrant visa applicants) must prove to the satisfaction of the Consular Official that the domestic employee (applicant) has a residence abroad which she has no intention of abandoning.
- Upon arrival to the United States the B1 domestic worker must immediately apply for work authorization from the USCIS and obtain an EAD card. Upon receipt of the EAD, domestic worker must also make application for a Social Security Number for reporting of payroll and income taxes on US earnings.
• Sponsor (Employer) Qualifications –
- An employment contract or an oral employment agreement or other contract in English, translated to the worker’s native language which has been signed by both parties, and compliant with the Department of State criteria is required.7
- The employer-employee relationship must have existed for at least 6 months (longer if the sponsor is not a US citizen),4 or the employer must have regularly employed a domestic employee in the same capacity abroad.5
- Accompanying the domestic worker’s visa application must be a letter from the sponsor’s (employer’s) company attesting that the employer (sponsor) is subject to frequent international transfers lasting two years or more as a condition of employment AND that the current assignment in the United States will last for no more than four years.
- B-1 visa rules and regulations require the sponsor (employer) to assert in a sworn statement that the worker will be paid a “fair wage” for full time work. The “fair wage” for a B1 domestic worker visa must be not less than the minimum of the greater of the state’s minimum wage or the federal minimum wage.6
- An employment contract or an oral employment agreement or other contract in English, translated to the worker’s native language which has been signed by both parties, and compliant with the Department of State criteria is required.7
- Working conditions, hours, compensation relating to same, must be consistent with State laws where resident. No work is allowed under the visa outside of these legal restraints.
- Employment taxes must be paid by the sponsor (employer) as if the domestic worker were Employment Authorized.
- The sponsor (employer) must pay the B-1 domestic worker on either a weekly or bi-weekly basis and payment must be by bank check or a direct deposit of net payroll into a bank account owned solely by the B-1 domestic. US bank accounts are available for visitors is available in most commercial banks using a passport and visa.
- The sponsor (employer) must, if the domestic worker lives in the residence, provide adequate and reasonable accommodations. This will include at a minimum a private bed, access to a bathroom, kitchen facilities, and proper food storage.8
- The sponsor (employer) may not retain physical possession of the passport of the domestic worker.The sponsor must pay the transportation expenses of the sponsored domestic worker from their home country to the United States. At the end of the contract or when the contract is terminated with at least two weeks prior notice, the sponsoring alien must departs the US and the sponsor must provide the transportation from the United States sufficient return the B-1 domestic worker to the country of origin. The application must show proof of payment for transportation and an outbound departure on the visa rotation dates.9
- The sponsor (employer) will be the only provider of employment to the domestic worker.
How the Application Fails – Fear of Human Trafficking
Technical compliance with the criteria is not enough to gain a B-1 visa for the domestic worker. Beware the Trafficking Victims Protection Act (TVPA)10 – The law provides that domestic workers traveling on a B-1 visa are viewed with suspicion and concern that the B-1 being presented as a domestic worker is in fact a person being “trafficked.” Under US federal law, the term “trafficking in persons” can be broken into 2 categories: sex trafficking and labor trafficking. Every consular officer that a visa applicant encounters has received multiple trainings on human trafficking and recognition of the “signs.”
The term trafficking is a form of ‘involuntary servitude’ which includes a condition of servitude induced by means of (A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraints; or (B) the abuse or threatened abuse of the legal process.11
There are significant “markers” used by the visa examiner (as well as the officers at the Port of Entry) to subjectively evaluate whether the domestic worker is in fact a person being trafficked. The U.S. Customs and Border Protection (CBP)12 trains its officers and agents to look for signs of human trafficking. Some indicators that may indicate human trafficking include:
- Lack of control- The person may lack control of their communication devices, money, identification or travel documents, or they may be unable to leave their home or work environment.
- Fear or anxiety- The person may appear fearful or submissive, or they may be distrustful of authorities.
- Signs of abuse – The person may have injuries that appear to be the result of assault, or they may show signs of branding or tattooing.
- Lack of basic needs – The person may appear to be deprived of basic needs like proper clothing, food, water, sleep, or medical care.
- Lack of knowledge – The person may be unfamiliar with the local language or may not know their home or work address, or may speak of a “job” which they cannot describe in any detail.
- Controlled movements – The person may seem to have their movements controlled, or they may act as if they were instructed by someone else.
CBP also has a program called the Blue Lightning Initiative (BLI) that trains airline employees to recognize signs of human trafficking and report suspected cases to law enforcement.13 The SOAR to Health and Wellness Training Program is designed to help officers, professionals, and ordinary people identify and respond to those who are at risk of, are currently experiencing, or have experienced trafficking.14 Almost every department of the US government has some level of involvement in the fight against human trafficking.
This atmosphere is one in which the attempt to bring a domestic worker to the US is viewed with a very high level of initial suspicion by the visa examiner. There is a general opinion that if it doesn’t “look normal” the examiner is going to deny the visa. What constitutes as “normal” is solely up to the examiner in the country as the consulate making the judgment decision. A sponsor may not know or understand that the examiner is also a mandatory reporter of suspected human trafficking – and will report suspicions to the chain of command – which reports are always referred to law enforcement from the consular leadership.
NOTE: Victims of human trafficking are eligible for protected status under the specialized “T” visa if the victim announces to any officer of the United States that the person is a victim.15 The victim must reach the US in order to claim protection of this status.
CONCLUSION – Traveling to the US with a domestic worker or caregiver is allowed if the sponsor (employer) obtains a B-1 visa by satisfying all the criteria16, and upon arrival in the US completes the employment authorization processes including tax registrations, banking details for wages, and honors the employment contract. It seems simple enough – but – DIY applicants fail at a high rate – when unprepared. The technical requirements can be addressed in most instances. However, the suspicion of human trafficking which attaches to this visa classification is considerable – and will result in a rejection even when all other criteria appear satisfied. Such a fear can also result in a criminal referral to local law enforcement. The suspicion will remain even when the visa is issued since airline personnel and border control authorities are all trained and sensitized to indicia of human trafficking. Prepare and plan understanding that new reality.
Reference List
- U.S. Department of State – 9 FAM 402.2-5(B)
https://fam.state.gov/fam/09fam/09fam040202.html - U.S. Department of State – 9 FAM 41.21 Note 6.2
Referenced in employment contract and worker eligibility criteria - U.S. Department of State – 9 FAM 41.22 N4.4
Requirements on working conditions and contract obligations - 9 FAM 41.22 N4.4b(3) – Fair Wage Requirement
Defines the wage standard for domestic workers under B-1 visa - 9 FAM 402.2-5(D)(1)(U)-(4)(U) – Employment Contract Conditions
- 3 FAM 4128.2-1 – Housing Requirements for State Employees (analogous condition)
- Trafficking Victims Protection Act (TVPA)
https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-human-trafficking-t-nonimmigrant-status/questions-and-answers-victims-of-human-trafficking-t-nonimmigrant-status - U.S. Customs and Border Protection (CBP) – Human Trafficking Awareness
https://www.cbp.gov/newsroom/spotlights/protecting-innocent - CBP Blue Lightning Initiative (BLI)
https://www.cbp.gov/border-security/human-trafficking/blue-lightning - SOAR to Health and Wellness Training Program
https://nhttac.acf.hhs.gov/soar - National Human Trafficking Hotline
Phone: 1-888-373-7888
Text: 233733
Live Chat: https://humantraffickinghotline.org
Regina Mundi Global Advisors 