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Do I need to hire a U.S. citizen to be our nanny or dad’s caregiver?

SUMMARY: You may legally hire a U.S. citizen, an alien lawfully admitted for permanent residence, or an alien with a valid work permit. You are required to verify your candidate’s employment eligibility using » Form I-9. Aliens with a valid work permit are eligible for and should have a valid Social Security Number. It is unlawful for you to knowingly hire or continue the employment of an alien who does not have appropriate US work authorization.

HomeWork Solutions clients may choose to have their newly hired nanny’s employment eligibility verified using the DHS e-Verify program, also referred to as electronic I-9 verification.

Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and West Virginia Employers NOTICE: State law requires that ALL employers use the DHS e-Verify program within 3 days of hire.

A lawfully admitted alien with documents from ICE indicating work authorization (i.e., DS-2019, I-20, I-551, etc.) may apply for and be issued a Social Security Number. Their Social Security Card will typically be marked “VALID FOR WORK ONLY WITH DHS AUTHORIZATION”.

The Social Security Administration will issue cards to aliens not authorized to work if they are lawfully admitted to the US and need the number for a valid non-work reason (as determined by Social Security Administration). The card will be marked “NOT VALID FOR EMPLOYMENT” to show that the individual cannot work. If the alien does work, the Social Security Administration is required to inform ICE.



Social Security cards issued after April 2007 will be formatted slightly differently, with a separate line for first and last names. Additional anti-tampering measures will be taken. Previously issued cards WILL remain valid.

Au Pairs and J-1 Visa Holders

A J-1 Visa is issued for an Exchange Visitor who is participating in an established J Exchange program pre-approved by the U.S. State Department. These programs include colleges and universities, research organizations and approved Au Pair organizations.

The au pair participating in an exchange visitor program receives room, board, and a weekly stipend in return for 45 hours per week of child care and light household duties. The program goal is to allow the au pair to experience American family life and improve English language skills for the one or two years she has received the authorization. The au pair is authorized to work for her sponsoring family ONLY. The special taxation of au pairs is discussed here.

Other J-1 visa holders that nanny employers are likely to encounter are admitted to the U.S. to pursue advanced education – undergraduate, graduate, or research. The J-1 visa holder may receive authorization to work ONLY for the sponsoring organization. There are rare cases where extended work authorization is permitted in pursuit of the educational objective. It is highly unlikely that any J-1 visa holders have legal authorization to work in or about a private home providing child care or other household support activities.

Illegal Immigration: Current Issues

The issue of illegal immigration and a citizenship path or amnesty for undocumented foreign workers in the United States is a major political issue at this time.  Recent executive action will have dramatic consequences to the many employers, including families, who currently employ undocumented workers.

Many households employ immigrants who are not legally authorized to work in the U.S. as nannies, housekeepers, groundskeepers, etc. Some of these households already comply with employment tax reporting; the majority do not. All of the various proposals being discussed in Washington include either a Guest Worker program, an amnesty program with a citizenship path for illegal immigrants already working in the U.S., or both. What does this mean to the household employer?

It is expected that all applications for immigrant legalization will include a detailed examination of the immigrant’s background, including their employment history while in the U.S. Immigrants applying for a “Z” visa, Green Card or other legalized status will be required to document employment and tax compliance. All plans include an examination of tax return records going back a minimum of 3 years. The illegal immigrants will be highly incented by the promise of legal status, and it is expected there will be significant pressures on current employers who have been paying these immigrants ‘under the table’ to come clean and catch up on tax payments so the immigrant can take advantage of the legalization program.

Families who decide to hire or retain their illegal immigrant employees are able to comply with all of the current payroll tax reporting requirements, even if the worker does not have a valid Social Security number or US Work Authorization. The Internal Revenue Code prohibits the sharing of taxpayer information with other government agents – see THE PRIVACY ACT OF 1974 5 U.S.C. § 552a. HomeWork Solutions’ staff can assist employers in this tax compliance, including preparation of back tax returns. Remember, tax compliance by illegal immigrants does not confer work authorization, but non-compliance will make them ineligible for future legal status.

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