Legal Blog

Visa Options for Nannies

Looking abroad is a common option among American families when considering hiring a nanny to work for them. Both temporary visas and permanent resident green cards can be considered when exploring your options in hiring a foreign nanny.

Visa Options for Hiring a Temporary Nanny

There are three types of temporary visas available for nannies: J-1 Exchange Visitor visa, H-2B nonimmigrant visa, and the B-1 Visitor visa.[1]

J-1 Exchange Visitor Visa

This visa is the best option for a family that does not have foreign nanny in mind that they plan on hiring. Nannies through the J-1 visa program are referred to as “au pairs,” and are selected through the Department of State (DOS) designated sponsor. These designated sponsors are members of an international network that hire and train the au pairs. The sponsors assist with the application process and match the au pair to a U.S. family.

If the family already knows a foreign nanny that they wish to hire (such as a friend or family member), then the J-1 visa is not the best option. If the foreign nanny becomes affiliated with one of the DOS sponsors, it can be possible. However, this is a difficult and timely option.

The DOS J-1 website provides useful information of the list of current sponsors, detailed description of the J-1 program, information on the application process, the U.S. family’s obligations to the foreign nanny and how the foreign nanny may qualify for the visa. [2]

H-2B Nonimmigrant Visa

Since there is no requirement to go through a DOS sponsor, the H-2B nonimmigrant visa is a good option for families who already have a nanny they wish to hire. With the H-2B visa, the family sponsors the nanny through a 4-step process:

  1. The family will obtain an Employer Identification Number (EIN) through the IRS to give to the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) on the H-2B applications. Obtaining the EIN can take several weeks. IRS Publication 926 is a useful resource to understanding this process.[3]
  2. The family must file an ETA Form 9142, Application for Temporary Employment Certification with DOL.
  3. Once DOL approves the application, the family can begin to file Form I-129 with USCIS.
  4. Once USCIS approves the I-129 it will send the approval to a U.S. consulate in the nanny’s home country where they will receive the H-2B visa. If the nanny is already in the U.S. lawfully, they can apply for a change of status through the USCIS.

Somethings to consider when applying for the H-2B visa is that there is an annual limit of visas available, capped at 66,000. This limit is often reached quickly, so it is important to begin the process early. If the prospective nanny had an H-2B visa sometime within the three years of applying then they may be exempt from this limit.

Another factor is that you must demonstrate to the DOL that there are no available U.S. workers that can fill the position, and that you will be paying the “prevailing wage.” The family must also pay the costs of the nanny’s return trip home if they terminate the nanny’s employment prior to the agreed-upon date, regardless of the reason for termination. However, if the nanny leaves voluntarily then the family will not be responsible.

B-1 Visa

For families living outside of the U.S. and are temporarily traveling to the U.S. or are subject to frequent international transfers lasting two or more years, may consider the B-1 Visitor visa for their foreign nanny.[4] The nanny is required to have been working for the family for a minimum of six months prior to entering the U.S. or to have at least one year of experience as a domestic employee. In the U.S. the nanny is not allowed to be employed with anyone else and the family must provide free room and board and airfare in and out of the U.S.

Sponsoring a Nanny for Permanent Residence

A family can sponsor a foreign nanny for a green card as an option for them to live and work in the U.S. permanently. This option begins by completing the labor certification or PERM process, which is often lengthy and complex.

PERM Labor Certification for a Nanny

The PERM process begins with the family placing job advertisements and interviewing applicants who meet the basic qualifications, to show that there are no U.S. applicants available, qualified and willing to do the job. The Department of Labor identifies the nanny position as “nonprofessional” since the occupation does not require a bachelor’s degree. The family is required to place three advertisements; one on the state’s workforce agency website, and the other two in a major newspaper in the area (example: Washington Post if the family lives in Washington, DC) for two consecutive Sundays.

After the advertisements end, the family will file a PERM application (ETA Form 9089) with the DOL. After approval of the PERM application, the family files an I-40 petition with USCIS.

Waiting for a Green Card

A nanny is classified under the EB-3, the third preference of the employment-based green card category. There are three categories for the EB-3 visa. Nannies fall into the “Unskilled Worker” category since they require less than two years of experience or training. With more EB-3 Unskilled Worker applicants than there are green cards available for this category, the wait list can be long. This is especially true for those applying from India, the Philippines and mainland China, where the waitlist can extend several years.

Placement on the waitlist depends on when the PERM application was filed. That filing date is the nanny’s “priority date.” The monthly Visa Bulletin published by the Department of State provides the priority date of the cases it can begin issuing visas for.[5]

Application for Permanent Residence

The nanny will apply for permanent residence with an “adjustment of status” (USCIS Form I-485) if they are already lawfully present in the U.S. If the nanny is overseas, they will apply for an “immigrant visa” and after coming to the U.S. would then receive their green card.

If the nanny is unlawfully present in the U.S., their options to obtain a green card become challenging. The nanny would need to leave the U.S. and go to a U.S. consulate in their home country to receive a visa. Those who have been in the U.S. for at least 180 days but less than a year will be subject to a three-year bar to reentry into the U.S, this bar extends to ten years if the unlawful presence lasted one year or longer.[6] Although there are some exceptions, unlawful presence situations are extremely complex and are best advised by an immigration attorney.

[1] https://www.nolo.com/legal-encyclopedia/can-i-help-my-nanny-get-green-card.html

[2] http://j1visa.state.gov/programs/au-pair

[3] https://www.irs.gov/publications/p926

[4] https://www.nolo.com/legal-encyclopedia/application-process-b-1-b-2-visitor-visa.html

[5] https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

[6] https://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter2-4.html