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.
There are three types of 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.
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 J-1 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. Also see Nolo's book Nannies and Au Pairs: Hiring In-Home Childcare.
If you already know the nanny you want to hire, the temporary, H-2B nonimmigrant visa is the best bet, if you can qualify. 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.
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. However, if your nanny had an H-2B visa some time in the three years before applying, the limit may not apply.
Second, you must demonstrate to the DOL that there are no available U.S. workers that can fill the position and prove that you will pay a “prevailing wage.”
Third, your nanny has to be from one of the countries eligible to participate in the H-2B visa program.
Finally, 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.)
You can also use the B-1 visa for your nanny if you ordinarily live outside the U.S. and you are traveling to the U.S. temporarily, or if you are subject to frequent international transfers lasting two years or more. Your job must be bringing you to the U.S. for no more than a four-year stay.
For the B-1, your nanny must have been working for you for at least six months prior to your admission to the U.S. or, alternatively, you must have regularly employed a nanny while outside the United States. Your nanny must have at least one year of experience as a personal or domestic employee, and can't work for anyone else while in the United States. You have to give your nanny free room and board and round trip airfare in and out of the United States.
For help with getting a B-1 visa, see Application Process for a B-1 or B-2 Visitor Visa.
In order for a nanny to live and 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.
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 could 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 could slow down significantly. We'll explain why in the next section.
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. Nannies are in the "Unskilled Worker" category, since they typically require less than two years of training or experience. There are often more EB-3 Unskilled Worker immigrants applying for green cards than there are green cards available for this category of workers, so a waiting list can develop. As of early 2016, there is a long waiting list for people from India and the Philippines, a less long wait for people from mainland China, and a short wait for everyone else.
Your nanny's place on the waiting list is based on the date that you 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 priority dates of the cases it can start receiving applications for, and start actually giving visas for. In the February 2016 Visa Bulletin, for example, the "cutoff" date for applying as an EB-3 worker (except those from India, China, and the Philippines, who wait even longer, due to high demand) was January 1, 2016. That means that only those nannies whose employers originally filed PERM applications for them before January 1, 2016, were eligible to apply for a visa or green card during the month of February, 2016. The cutoff date for actually getting a visa was October 15, 2015, meaning the State Department could not release the visa to the nanny during February 2016 unless the employer had filed the PERM on or before October 15, 2015.
As you can see, nannies from most countries currently do not face a terribly long wait for a visa or green card, but if the nanny is from India, China, or the Philippines, she 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.
If your nanny is already in the U.S. legally, she can likely apply for permanent residence using a procedure called "adjustment of status" (using USCIS Form I-485). If coming from overseas, she would apply for an "immigrant visa" to come to the United States. She would automatically get a green card shortly after she enters the country.
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 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 an immigrant visa. 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 (or gets deported) she will trigger a ten-year bar to reentry. (See Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars.) 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 if your nanny is, or has ever been, in the U.S. illegally.
Importantly, regardless of whether or not the nanny has status issues, the priority date backlog for India, China, and the Philppines creates unique troubles for nannies from those countries. 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 get a green card only when the law allows her to. Therefore, it can be very difficult for families to obtain green cards for nannies.