Can I Help My Nanny Get a Green Card?

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Many American families hire foreign nannies to take care of their children. Some families want the nanny to stay with them permanently, while others require only temporary childcare.

While both temporary visa and permanent green card possibilities exist to bring a foreign nanny to the United States, if your nanny is already living in the U.S. without legal status, these possibilities become far fewer.

Legal Problems When a Nanny Lives in the U.S. Unlawfully

If your nanny is in the U.S. unlawfully (after an illegal entry or overstaying a visa), it will be very difficult for her to obtain a nonimmigrant (temporary) visa or a green card based on her job with you (or on any other basis, for that matter).

The reason for the difficulty is that the nanny would need to leave the U.S. and go to a U.S. consulate in her home country to receive the visa in her passport. A nanny who has been in the U.S. illegally for 180 days but less than one year will, upon leaving, trigger a three-year bar to reentry. If the nanny's illegal stay in the U.S. was for one year or longer, when she leaves she will trigger a ten-year bar to reentry. (See "Consequences of Unlawful Presence in the U.S. -- Three- and Ten-Year Time Bars.")

There is a chance that the nanny will be able to obtain a waiver of the three or ten-year bars. Such a waiver would allow her to obtain a visa and enter the U.S., notwithstanding her previous illegal stay.

If she were to apply for a nonimmigrant (temporary) visa, the needed waiver would be what's called a 212(d)(3) orMatter of Hranka waiver. However, the U.S. government’s decision to grant this waiver is entirely discretionary and the process for obtaining it is very lengthy. So, by the time the nanny’s waiver is approved (if it is approved at all) she will likely not have much time left to come to the U.S. and work.

The immigrant waiver is called an I-601 waiver. To apply for the I-601, the nanny must have a “qualifying relative,” who is a U.S. citizen or lawful permanent resident spouse or parent. In addition to the qualifying relative, the nanny must show that the relative would suffer extreme hardship if the U.S. refused to let the nanny enter the country. (See "Inadmissibility and Waivers.”)

The following subsections assume that your nanny is either coming from overseas or already has a legal right to be in the U.S. -- and that this right can be extended until the visa or green card is obtained.

Visas for Hiring a Temporary Nanny

There are two temporary visas available for nannies. The first is called the J-1 Exchange Visitor visa. Nannies are referred to as “au pairs” in the J-1 visa program. J-1 visas are initially valid for one year and the nanny can extend the visa for up to one additional year.

J-1 visa. The J-1 visa is suitable for a family that does not already have a foreign worker in mind to employ as a nanny. Families who sponsor au pairs for J-1 visas must work with a U.S. Department of State (DOS) designated sponsor. These sponsors oversee and assist with the au pair application process. The sponsors are members of international networks that hire and train au pairs, and the sponsors basically match someone who is already affiliated with the sponsor’s association to a U.S. family.

For example, let’s say the Johnson family wants to bring their Russian niece, Natasha, to the U.S. as a nanny. Before Natasha can obtain the J-1 visa, she would need to become affiliated with one of the DOS sponsors, which can be a difficult and lengthy process. Therefore, the J-1 visa is probably not the best option for the Johnson family.

The DOS website provides a list of the current sponsors and a comprehensive description of the J-1 nanny program, including a detailed explanation of the application process, the U.S. family’s obligations to the foreign nanny, and how a foreign nanny qualifies for the visa: http://j1visa.state.gov/programs/au-pair/. Also see Nolo's book, Nannies and Au Pairs: Hiring In-Home Childcare.

H-2B visa. If you already know the nanny you want to hire, the temporary, H-2B nonimmigrant visa is the best bet. It doesn't come with a requirement that the family go through a DOS sponsor. Rather, the family sponsors the H-2B nanny on its own.

Sponsoring an H-2B nanny is a multistep process.

  • First, the family must obtain an Employer Identification Number (EIN) from the IRS, to give to the DOL and USCIS on the H-2B applications. This process is not particularly difficult or costly, but plan ahead: It can take a few weeks to obtain the EIN. IRS Publication 926 provides helpful explanations on doing so.
  • Second, the family (as the nanny’s employer) must file an ETA Form 9142, Application for Temporary Employment Certification, with the U.S. Department of Labor (DOL).
  • Third, after the DOL approves the temporary employment certification, the family files an I-129 petition with U.S. Citizenship and Immigration Services (USCIS).
  • Fourth, after USCIS approves the I-129, it sends the approval to the U.S. consulate in the nanny’s home country and the nanny obtains the H-2B visa from the consulate. Or, if the nanny is already lawfully in the U.S., a change of status, in which you file all paperwork directly with USCIS, may be possible.

There are disadvantages to obtaining an H-2B visa for a nanny. For one, there is an annual limit of 66,000 H-2B visas. Sometimes this limit is reached very quickly, at which point no more visas are issued for the rest of that fiscal year. Therefore, if the H-2B process is delayed or you start late in the fiscal year, there may not be a visa available for the nanny even if USCIS approves the I-129 petition.

Second, if you terminate the nanny’s employment before the agreed-upon end date, you must pay the costs of the nanny’s return trip to her home country. The employer-family is responsible for these costs regardless of the reason for the early termination. (However, if the nanny voluntarily leaves her employment early, the family is not responsible for these costs.)

Sponsoring a Nanny for Permanent U.S. Residence

In order for a nanny to work in the U.S. permanently, the family must sponsor the nanny for a green card. This option won't work for every family, however. It involves completing a lengthy and complex process known as labor certification or PERM; another long wait before a visa becomes available; and, if your nanny is already working for you, will require her to be able to maintain legal status in the meantime.

Undertaking PERM Labor Certification on Behalf of a Nanny

The PERM process requires employers (in this case, the family) to place job advertisements, interview applicants whose resumes indicate that they meet the basic qualifications, and ultimately show that no U.S. applicants were available, qualified, and willing to do the job. The DOL views the nanny job position as a “nonprofessional” occupation, because it feels that a person does not need a bachelor’s degree to perform the required duties.

Because the nanny position is nonprofessional, the family needs to place three advertisements: one on the state’s workforce agency website, and two others on consecutive Sundays in the major newspaper in the area. For example, a family living in Washington, DC would place the two newspaper ads in the Washington Post.

Once the advertisements end, the family files a PERM application (ETA Form 9089) with the DOL. After the DOL approves the PERM, the family files an I-140 petition with USCIS.

At this point, however, the process is likely to slow down significantly. We'll explain why in the next section.

Awaiting an Available Green Card (Immigrant Visa) for the Nanny

Congress places numerical limits on how many immigrants can receive green cards every year. A nanny is classified in the third preference of the employment-based visa system (EB-3). The EB-3 category is subdivided into three categories, with nannies are in the "Unskilled Worker" category, since they typically require less than two years of training or experience. There are many more EB-3 Unskilled Worker immigrants applying for green cards than there are green cards available, so this category has become extremely backlogged.

Because of this backlog, the nanny will be on a sort of waiting list, based on the date that the family filed the PERM application. That date becomes the nanny’s "priority date," or place in line. The Department of State publishes a monthly Visa Bulletin showing the current priority dates. In the November 2012 Visa Bulletin, for example, the priority date for EB-3 workers (except those from India, China, Mexico, and the Philippines, who wait even longer, due to high demand) was November 6, 2006. That means that only those nannies whose employers originally filed PERM applications for them before November 6, 2006 -- six years earlier! -- were eligible to receive green cards during the month of November, 2012.

As you can see, the nanny will likely have to wait several years for her priority date to become current. Then and only then can she file her green card application.

After the Nanny's Priority Date Is Current

Once the nanny’s priority date is at last current, the nanny is eligible to file for her green card. If she is already in the U.S. legally, she can likely apply using a procedure called "adjustment of status" (using USCIS Form I-485). If coming from overseas, she would do "consular processing."

However, if the nanny is in the U.S. unlawfully, it is almost impossible for a family to sponsor her for a green card because of the penalties for unlawful presence described earlier. A few exceptions do exist, which you can read about in “Who Can Apply for a Green Card Through Adjustment of Status.” Due to the extreme complexities of unlawful presence situations, it is highly recommended you consult an immigration attorney.

Importantly, regardless of whether or not the nanny has status issues, the priority date backlog creates unique troubles for nannies. Even when their priority date becomes current, to receive their green card they must show that they still intend to work for the family that sponsored them. However, by the time the priority date is current, the family’s children will be much older and unlikely to require further services from a nanny!

There is no way around this priority date backlog hurdle – a nanny can apply for the green card only when her priority date is current. Therefore, it can be very difficult for families to obtain green cards for nannies.

 

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