Few tasks are as difficult as handling a newborn child and making a world spanning airline flight to see family and friends. That extra set of hands will make everyone happier.

Traveling to the US with a domestic worker or caregiver is allowed if the sponsor (employer)1 obtains a B-1 visa by satisfying all the criteria2, 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.

US Citizens Working Overseas – Domestic Workers/Caregivers 3 – 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.4 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 one (1) year if a timely extension is granted (in advance). Typically, the domestic worker must leave the US every six (6) months to avoid a visa overstay and subsequent revocation. Review the following:

•       Domestic Worker Qualifications –

• The B-1 domestic worker must have a permanent home in the country of origin and substantial evidence of no intent to abandon that home.
• 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 –

• The employer-employee relationship must have existed for at least 6 months5 (US citizen and LPR holders are not eligible to bring in domestic workers on B-1 Visa),6 or the employer must have regularly employed a domestic employee in the same capacity abroad.7
• 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”8 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.9
• 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.10
• 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.11
• 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.12
• The sponsor (employer) will be the only provider of employment to the domestic worker.

Domestic Workers/Caregivers 13 – How To Qualify For B Visa

A non-immigrant may bring to the US a personal employee or domestic worker 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, Q, and TN (NAFTA Professional) nonimmigrant status.14 The following requirements must be satisfied at the visa interview (if not beforehand). Please review the below:

Domestic Worker Qualifications

• The employee has a residence abroad which 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 can demonstrate at least one year’s experience as a personal employee or domestic worker;
• The employee has been employed abroad by the employer as a personal employee or domestic worker for at least one year before the date of the employer’s admission to the United States or if the employee-employer relationship existed immediately before the time of visa application, the employer can demonstrate that they have regularly employed (either year-round or seasonally) personal employees or domestic worker’s over several years preceding the domestic employee’s visa application for a non- immigrant B-1 visa;

Sponsor (Employer) Qualifications

• The Sponsor and the applicant must have an employment contract in a language understood by the employee that has been signed and dated by the employer and employee, and such contract includes the following provisions:
• The employee will receive the greater of the minimum or prevailing wage under U.S. federal, state, or local law for an eight-hour workday;
• The employee will receive free room and board;
• The employer will be the only provider of employment to the employee; and
• The employer must pay the domestic’s initial travel expenses to the United States, and to the employer’s onward assignment, or to the employee’s country of normal residence at the termination of the assignment.

The most common scenario for the non-immigrant who brings a domestic worker to the US on a short stay (tourist) is the desire to introduce a newborn child to relatives or to have assistance with an injured or sick traveler. The rules do not anticipate this scenario specifically. The Sponsor in this scenario must make a new plan. One approach that fits most situations is to document the domestic worker as a replacement for another –

The rule provides – ***”if the employee-employer relationship existed immediately before the time of visa application, the employer can demonstrate that they have regularly employed (either year-round or seasonally) personal employees or domestic worker’s over several years preceding the domestic employee’s visa application for a nonimmigrant B-1 visa;”*** This means if the Sponsor can show a “string” of domestic workers, then this new hire can “step into the shoes” of the prior workers for the length of service criteria.

The Sponsor has to document that a “domestic” worker of some sort for one or more years worked for the Sponsor. This documentation includes the names, identifications, dates of employment, contracts of employment, and proof of payment for that worker should be made available for examination by the officer. The Sponsor must represent that the current domestic worker is one in a string of such workers in order to be successful in obtaining the B-1 visa for the trip. Do not forget to also show that the replacement domestic worker has at least a total of 12 months of experience as a domestic worker (even if not all of that time is with the Sponsor).

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)15 – 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.16

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)17 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.18 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.19 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.20 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 criteria21, 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.

References

¹ A U.S. citizen who has a permanent home or is stationed in a foreign country, but is visiting or is assigned to the United States temporarily; or a foreign citizen who is in the United States on one of the following non-immigrant visa categories: B, E, F, H, I, J, L, M, O, P, or Q.²https://fam.state.gov/fam/09fam/09fam040202.html

³ US Department of State’s Foreign Affairs Manual (9 FAM §41.21, Note 6.2)

⁴ The mandatory employment contract must stipulate to all of the provisions concerning wages, deductions, and employment conditions spelled out in 9 FAM §41.21, Note 6.2. Consular officers should ensure that the terms of the contract are clear and that they conform to the requirements of 9 FAM §41.21 N6.2 and §41.22 N4.4, including in particular payment for time the employee is required to remain on premises after hours, employee’s retention of passport, and employee’s right to leave the premises when not on duty.

⁵ 9 FAM 402.2-5(D)(1) (a) Personal employees or domestic workers may accompany or follow to join a U.S. citizen employer who is traveling to the United States temporarily, if the U.S. citizen employer has a permanent home or is stationed in a foreign country, and the following requirements are met: *** (2) The applicant has been employed abroad by the employer as a personal employee or domestic worker for at least six months before the date of the employer’s admission to the United States; or the employer can show that while abroad the employer has regularly employed a domestic worker in the same capacity as that intended for the applicant*** (see also, 9 FAM 402.2-5(D)(2) for US citizens on temporary assignments inside USA) (see also., 9 FAM 402.2-5(D)(3) for non-immigrant visa holders in visa classes B, E, F, H, I, J, L, M, O, P, Q, and TN.

⁶ Lawful Permanent Residents (LPR) and US citizens who reside inside the US are not eligible to bring an B-1 domestic worker to the US.

⁷ NOTE: Non-immigrant employers need to submit with the application evidence of their own working visa and; proof that the domestic worker was employed by them abroad for at least 1 year before coming to the United States, OR that he/she had at least 1 year’s prior experience abroad in this capacity and that the current employer in the U.S. previously employed a domestic worker abroad.

⁸ https://flag.dol.gov/wage-data/wage-search provides “prevailing wage” where the nature of the domestic service is in a special classification (i.e., medical service provider such as a nurse).

⁹ 9 FAM 41.22 N4.4b(3)

¹⁰ 9 FAM 402.2-5(D)(1)(U) – (4) (U) The employee is in possession of an original contract or a copy of the contract, to be presented at the POE. The employment contract must be in a language understood by the employee and signed and dated by the employer and the employee. https://fam.state.gov/fam/09fam/09fam040202.html The employment contract must include the following provisions:

• (U) The employer will be the only provider of employment to the domestic employee;
• (U) The employer will provide the employee free room and board and a round trip airfare;
• (U) The employee will receive the greater of the minimum or prevailing wage under U.S. federal, state, or local law for an eight-hour workday;
• (U) The employer will give at least two weeks’ notice of their intent to terminate the employment, and the employee need not give more than two weeks’ notice of their intent to leave the employment; and
• (U) The employment contract must also reflect any other benefits normally required for

U.S. domestic workers in the area of employment.

¹¹ This requirement is analogous to 3 FAM 4128.2-1 requirements imposed upon Department of State employees.

¹² Most often the DIY applicants fail to recognize that the B-1 Domestic Worker must depart the US after 6 months unless a timely extension is obtained. The return transportation must be scheduled and purchased for the 6 month return date rather than a longer date which may align to the sponsor’s travel plans.

¹³ US Department of State’s Foreign Affairs Manual 9 FAM §402.2-5(D)(3)

¹⁴ 9 FAM 402.2-5(D)(4) Lawful Permanent Residents (LPRs), including conditional permanent residents and LPRs who have filed Form N-470, Application to Preserve Residence for Naturalization Purposes, may not employ foreign nationals in B-1 domestic status, as the employer is permanently resident in the United States.

¹⁵ 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

¹⁶ If you suspect human trafficking then call the hotline – You can contact the National Human Trafficking Hotline by phone at 1-888-373-7888, text at 233733, or live online chat from anywhere in the U.S. and U.S. territories, 24 hours a day, 7 days a week

¹⁷ https://www.cbp.gov/newsroom/spotlights/protecting-innocent

¹⁸ https://www.cbp.gov/border-security/human-trafficking/blue-lightning

¹⁹ https://nhttac.acf.hhs.gov/soar

²⁰ Human trafficking, also known as trafficking in persons, is a crime in which traffickers use force, fraud, or coercion to compel forced labor or a commercial sex act, or when a victim induced to perform commercial sex is under age 18. The T visa allows victims to remain in the United States to heal, stabilize, and assist law enforcement agencies in

the detection, investigation, and prosecution of human trafficking cases.

²¹ https://fam.state.gov/fam/09fam/09fam040202.html