In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
1) QUESTION: I am a US citizen working in the UK. I employ a nanny for my son. I have to travel to the US for work for two weeks and would like my nanny to escort my son to the US. She has a UK passport. Is she able to do this? Do I have to arrange a visa beforehand, or can she enter on the Visa Waiver Program as a UK citizen?
ANSWER: A US citizen who has a permanent home abroad or is stationed in a foreign country and are temporarily visiting the US can bring their personal or domestic employees to the US to join them using a B-1 visitor visa. This option is also available to nonimmigrants in B, E, F, H, I, J, L, M, O, P or Q status. This option is not available for the personal or domestic employees of US Permanent Residents (green card holders).
In order to be eligible for a B visa for employment by a US citizen employer the employment must have been commenced at least six months prior to the date of the employer’s admission to the US or the employer must show that while abroad they regularly employed a domestic employee in the same capacity. The employee must have a residence abroad they have no intention of abandoning. The employee must be able to show that they have at least one year of experience as a personal or domestic employee through letters from previous employers. The employee must be able to show a current employment contract meeting certain requirements, such as that the employee will receive the minimum or prevailing wages, whichever is greater, for an eight-hour work-day.
In order to be eligible for a B visa for employment by a nonimmigrant employer the employment must have been commenced at least one year prior to the date of the employer’s admission to the US or the employer must show that the employer-employee relationship existed prior to the visa application and the employer regularly employed a domestic employee in the same capacity for several years. The employee must have a residence abroad they have no intention of abandoning. The employee must be able to show that they have at least one year of experience as a personal or domestic employee through letters from previous employers. The employee must be able to show a current employment contract meeting certain requirements, such as that the employee will receive the minimum or prevailing wages, whichever is greater, for an eight-hour work-day. The employer must pay for the employees travel expenses and must provide free room and board for the employee.
Examples of such personal or domestic employees include, but are not limited to, cooks, butlers, chauffeurs, housekeepers, valets, footmen, nannies, caregivers, au pairs, gardeners, and household managers.
Personal or domestic employees who are eligible for a B visa are also eligible to be admitted to the US without a visa if they are eligible for the Visa Waiver Program, but they would only be admitted for up to 3 months, and would not be eligible to apply for an extension of their status. Those applying for admission under the Visa Waiver Program must be prepared to show the required evidence to CBP upon requesting admission.
A nanny may not need to show the required documentation if they are just accompanying the child to the US to deliver them to their parent and are not planning on being employed in the US. If this is the case, they will still have to obtain a visa (except for those traveling on the Visa Waiver Program and Canadians) and will have to meet the requirements for a visitor visa.
Also, anyone who is travelling with a minor should have proof that they have permission from both parents to take the child out of the country. Countries differ as to the type of documentation required to show this.
2) QUESTION: My sister filed an I-130 for me in 2001. My mother just got her green card. If my mother files an I-130 for me, do I keep my 2001 priority date for my mother’s I-130?
ANSWER: No. Your mother can file a new I-130 immigrant petition for you (assuming you are not married), but the new I-130 will not have the priority date from your sister’s petition. The priority date for your mother’s I-130 will be the date that her I-130 is filed.
However, where the same petitioner files a new I-130 for the same beneficiary, and the old I-130 is still approved, then you can recapture the priority date from the old I-130. This rule does not apply here since the two I-130s are being filed by different petitioners.
Also, the priority date from an approved I-140 employment-based petition can often be recaptured for future I-140 petitions.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.