B1 Status: Personal Employees and Domestic Workers

B1 Personal Employee

 

Introduction

The B1 nonimmigrant visitor visa category allows for the issuance of travel visas to certain business visitors. The U.S. Department of State's (DOS's) Foreign Affairs Manual (FAM) outlines circumstances in which B1 visas may be issued. In this article we will examine B1 status for personal and domestic assistants. Before reading this article, please see our main article on the B1 nonimmigrant category [see article]. Furthermore, please see our selection of articles on other situations for which B1 status may be granted:

B1 Status: Employment Incidental to Business Activities [see article]
B1 Status: Certain Other Business Activities Classifiable as B1 [see article]
B1 Status: Aliens Normally Classifiable as H1 or H3 [see article]
B1 Status: Entertainers and Artists [see article]

For our full selection of articles on B visitor visas, please see our categories for B1 [see category] and B2 [see category] travel visas.

Overview: Personal Employees and Domestic Workers

Under limited circumstances outlined in 9 FAM 402.2-5(D), personal employees and domestic workers working in the employ of a particular individual may be classifiable as B1 visitors. There are situations under which the personal employees and domestic workers of U.S. citizens and aliens can be admitted as noncitizens. In the following sections, we will examine the rules in the FAM.

1. Personal Employees and Domestic Workers of U.S. Citizens Residing Abroad

9 FAM 402.2-5(D)(1) outlines situations in which personal employees or domestic workers may accompany or follow to join a U.S. citizen employer who is traveling to the United States temporarily. In order for a personal employee or domestic worker to qualify under this provision, the U.S. citizen employer must have a permanent home or be stationed in a foreign country. Additionally, the following must be demonstrated for the personal employee or domestic worker (paraphrased):

1. The employee must have a permanent residence abroad which he or she has no intention of abandoning;
2. The employee must have been employed by the U.S. citizen abroad as a personal employee or domestic worker either for at least six months prior to the employer's admission to the United States or was employed regularly by the U.S. citizen while abroad as a domestic worker in the same capacity that he or she would be working in B1 status;
3. The employee can demonstrate that he or she has at least one year of experience as a personal employee or domestic worker (does not have to all be for the U.S. citizen employer); and
4. The employee has an original contract or copy of the original contract to be presented at the port of entry. The contract must be dated by both the employer and the employee. The contract must include the following provisions: (a) The employee will only be employed by his or her U.S. citizen employer while in the United States; (b) The employer will provide the employee with free room and board and round trip airfare; (c) The employee will receive the minimum or prevailing wage under U.S. federal, state, or local law for an eight hour work-day, whichever is higher; (d) The employer will provide the employee with at least two weeks' notice of his or her intent to terminate employment, and the employee need not give more than two weeks' notice of his or her intent to leave the employment; and (e) The employment contract must also reflect any other benefits normally required for U.S. domestic workers in the area of employment.

The B1 visa in this case is only available for personal employees and domestic workers of U.S. citizens who are traveling to the United States temporarily and who have a permanent home abroad or who are stationed in a foreign country. To this effect, it is important to note that it is not a catch-all provision for bringing a personal employee or domestic worker into the United States to work for a U.S. citizen.

2. Personal Employees and Domestic Workers of U.S. Citizens on Temporary Assignment to the United States

9 FAM 402.2-5(D)(2) allows for certain personal employees and domestic workers in the employ of U.S. citizens on temporary assignment to the United States to qualify for B1 status to work in the same capacity for a short period in the United States. 9 FAM 402.2-5(D)(2) is very similar to the provision we discussed above from 9 FAM 402.2-5(D)(1) save for differences in the situation of the U.S. citizen employer.

The list from the previous section [see section] is reproduced in 9 FAM 402.2-5(D)(2) with one minor difference regarding the requirement that the employee demonstrate at least one year of experience as a personal employee or domestic worker. Under 9 FAM 402.2-5(D)(2)(a)(3), the employee must meet this requirement “by producing statements from previous employers attesting to such experience…” Although the one-year experience requirement is the same in 9 FAM 402.2-5(D)(1), that provision does not require that the employee meet the requirement by producing statements from previous employers. However, that would in any case be a likely way to meet the requirement in 9 FAM 402.2-5(D)(1).

The primary difference between this provision and the previous provision we discussed is found in 9 FAM 402.2-5(D)(2)(b). In both this provision and the previous one, the U.S. citizen employer must be traveling to the United States temporarily. In the case of 9 FAM 402.2-5(D)(2)(a), the U.S. citizen employer must have a permanent home abroad or must be routinely stationed in a foreign country. The additional requirement in 9 FAM 402.2-5(d)(2)(b) requires that the U.S. citizen employer:

Must be 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
Must be returning to the United States for a stay of no more than six years.

9 FAM 402.2-5(D)(2) and (1) are generally similar provisions. There are slight differences in eligibility and evidentiary requirements that depend primarily on the situation of the U.S. citizen employer. The requirements for the personal employee or domestic worker are nearly identical. An experienced immigration attorney will be able to determine which provision, if either, best applies to a specific case.

3. Personal Employees and Domestic Workers of Foreign Nationals in Nonimmigrant Status

9 FAM 402.2-5(D)(3) outlines situations in which the personal employee or domestic worker of a foreign national in the United States in lawful nonimmigrant status may qualify for B1 status. First, the personal employee or domestic worker must be accompanying or following to join an individual in one of the following nonimmigrant statuses:

B
E
F
H
I
J
L
M
O
P
 Q

Provided that the employer is in a qualifying nonimmigrant status, the following requirements must be met by the employee (paraphrased):

1. The employee has a residence abroad which he or she has no intention of abandoning (this applies even if the employer is in a nonimmigrant status which does not require such a showing);
2. The employee demonstrates that he or she has at least one year of experience working as a personal employee or domestic worker;
3. It is demonstrated either that the employee has either been employed by the employer as a personal employee or domestic worker for at least one year prior to the date of the employer's admission to the United States, or if the employer-employee relationship existed immediately prior to the visa application, the employer has regularly employed (either year-round or seasonally) personal employees or domestic workers “over a period of several years” prior to the current employee's application for a B1 visa;
4. The employee must have an employment contract which has been signed and dated by the employer and employee, and the contract must include the following provisions stipulating that: (a) The employee will receive the greater of the minimum or prevailing wage under U.S. federal, state, or local law; (b) The employee will receive free room and board; (c) The employee will only be employed by the employer while in the United States; and (d) The employer will pay the employee's initial travel expenses to the United States and expenses to the employee's onward assignment or to the employee's country of normal residence at the termination of the assignment.

The requirements for personal employees and domestic workers of nonimmigrants are similar to, but slightly stricter in certain areas, the requirements for such employees of U.S. citizens traveling to the United States temporarily. The nonimmigrant employer must meet a slightly higher requirement for employing the specific employee or employing such employees in general. However, the list of items that must be included in the employment contract is actually shorter than it is for such employees of U.S. citizens.

4. Concerning Lawful Permanent Residents

9 FAM 402.2-5(D)(4) makes clear that the personal employee or domestic worker employee of a lawful permanent resident must obtain permanent resident status in his or her own right to work in the same capacity in the United States. This includes such employees of conditional permanent resident employers and lawful permanent resident employers who filed the Form N-470, Application to Preserve Residence for Naturalization Purposes. The reason for this is that the employing lawful permanent resident must be a resident of the United States in order to maintain status. Accordingly, the B1 visa is not available to the personal employee or domestic worker of a lawful permanent resident.

Other Provisions

There are no other situations in which a personal employee or domestic worker may qualify for a B1 visa. In the following subsections, we will examine other rules applying to B1 personal employees and domestic workers.

Source of Payment

9 FAM 402.2-5(D)(5) states that the source of payment to a B1 personal employee or domestic worker is not relevant. The place where the payment is made and the location of the bank from which the payment is made are also not relevant.

William Wilberforce Trafficking Victims Protection Act

Under 9 FAM 402.2-5(D)(6), consular officers are required to ensure that an alien seeking a B1 visa to work as a personal employee or domestic worker is made aware of his or her rights under the Federal immigration, labor, and employment laws. Such applicants will be provided with a pamphlet detailing the protections at the interview. If the B1 employee is eligible for an in-person interview waiver, he or she will receive a copy of the pamphlet along with his or her visa.

You may read about the protections here [PDF version].

Social Security Cards

Under 9 FAM 402.2-5(I), the B1 personal employee or domestic worker of a U.S. citizen or a nonimmigrant may apply for a social security card.

Conclusion

The B1 visa category allows for U.S. citizens to bring a personal employee or domestic worker into the United States under limited circumstances. It permits the same for certain nonimmigrants. An individual interested in bringing a personal employee or domestic worker into the United States should consult with an experienced immigration attorney for an assessment of whether his or her situation falls under the rules outlined in the FAM. For B1 personal employees and domestic workers, it is important to be cognizant of the limitations of B1 status. Such B1 employees are only permitted to work for their U.S. citizen or nonimmigrant employer in the capacity outlined in their contract. Violating B1 status may lead to serious long-term immigration consequences. When in doubt about the rules of B1 status, it is best to consult with an experienced immigration attorney.

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B1 visa