U.S. Department of State Regulations: B-1 Domestic Servants
The U.S. Department of State allows certain non-immigrant aliens and US citizens to bring into the United States their servants, personal attendants and other domestics provided certain conditions are met. The B-1 Domestic Visa allows currently employed (no less than 6 months) domestic employees to accompany their employers who are moving temporarily to the US from abroad. The applicant typically works for an employer who: “is a US citizen subject to frequent international transfers lasting two years or more as a condition of the job as confirmed by the employer’s personnel office.” Domestic employee visa applicants (like most nonimmigrant 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.
The US Department of State’s Foreign Aid Manual (9 FAM §41.21, Note 6.2) was amended in September 2001 to require that certain conditions must be satisfied prior to issuance of a visa to the domestic worker. The general conditions are a guarantee that the worker will be paid a fair wage for full time work, and an employment agreement or contract in English, translated to the worker’s native language. U.S. Department of State regulations were further tightened in 2009.
Accompanying the domestic servant’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.
Sponsoring organizations are anxious to distance themselves from allegations that the organizations condone foreign worker abuses and domestic enslavement and have become very proactive in recent years in monitoring the employment practices of their staff members who sponsor foreign domestic workers. Particular attention is paid to documenting proper wage payments to the domestic and compliance with applicable state and federal tax laws.
Payroll & Income Tax Obligations
The B-1 domestic servants’ wages originating in the United States are subject to the same taxation as any US wage earner. The B-1 domestic servant is granted the same worker protections (see Fair Labor Standards Act) as any US wage earner.
A Fair Wage and Work Conditions
The B-1 domestic servant must be paid at a minimum the greater of the state’s minimum wage or the Federal minimum wage (9 FAM 41.22 N4.4b(3)).
Deductions for room and board, if any, must be documented in the employment contract presented to the counsular official and may be “no more than reasonable.” If the wage remaining after deductions for room and board falls below the applicable minimum or prevailing wage and the consular official concludes the remaining wage is insufficient, the consular offical may deny the visa request.
The B-1 domestic is specifically prohibited from being employed by anyone other than the sponsoring alien.
The sponsoring alien or US Citizen, who is the employer, MUST pay the B-1 domestic 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. Cash payments are expressly prohibited.
The sponsoring alien or US Citizen, who is the employer, MAY NOT withhold the passport of the B-1 domestic.
The B-1 domestic may not be required to remain on the premises outside of working hours without compensation.
Additionally, the sponsoring alien or US Citizen and the B-1 domestic must remain in compliance with all U.S. employment tax and income tax regulations and payments. The B-1 domestic is entitled to overtime payments as stipulated by Federal Regulations (or State Regulations where stricter than the Federal standards).
A Contract or Employment Agreement
The US Department of State advises that a contract is a mandatory requirement because “While the Department …(is) not in a position to enforce behavior of employers or employees while in the United States, the contract does establish a relationship between the parties for which either may seek redress.”
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.
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 sponsoring alien departs) the sponsor must provide the transportation from the United States either to the next duty posting location or back to the B-1 domestic’s home.
The US Department of State further advises “Domestic workers …that the U.S. Government considers “involuntary servitude” of domestic workers, as defined under the Trafficking Victims Protection Act (TVPA), to be a severe form of trafficking in persons (TIP) and a serious criminal offense; victims of involuntary servitude are offered protection under the TVPA. According to the TVPA “The term ‘involuntary servitude’ 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.” Consular officers should also make domestic workers aware that the telephone number for police and emergency services is 911, and that the Department of Health and Human Services maintains a telephone hotline for reporting abuse of domestic employees and other TIP-related crimes, 1-888-3737-888.”
The B-1 domestic is subject to the same taxation as any US wage earner. The B-1 domestic is granted the same worker protections (see Fair Labor Standards Act) as any US wage earner.
My nanny has a B-1 Visa – now what?