Risks to Hiring an Undocumented Nanny

The potential problems go beyond your own "Nannygate"

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If you have small children, the day may come when you decide to hire in-home, or even live-in child care – otherwise known as a nanny. Depending on where you live, some of the most widely available, affordable, or qualified applicants may lack immigration paperwork. That doesn’t stop many parents from hiring them, but you should be aware of the risks, as described below.

  • You would be breaking the law. As an employer (and yes, you would be an employer – the very nature of the nanny’s job means that the IRS is unlikely to call her an independent contractor) you must, under U.S. federal law, hire only nannies who have a legal right to both live and work in the United States. If you are caught, you could be fined several hundred dollars.
  • Your nanny could be arrested at any time. U.S. immigration enforcement authorities are pretty busy, so the chances of your nanny being targeted for arrest are slim. But they’re not nonexistent, especially in states where the police cooperate with immigration authorities by turning over suspected undocumented persons. You absolutely wouldn’t want to face a situation where the nanny is afraid to call the police about a burglar in your home because she might be arrested.
  • If arrested while at your home, your children could be left there, alone. It has happened. Immigration enforcement authorities do not consider childcare to be among their responsibilities. And if your nanny is eventually removed from the United States, the sudden and complete separation could be traumatic for your children.
  • Your chances of attaining high political office would be nil. Remember Nannygate, when Zoe Baird failed to win nomination as attorney general during Bill Clinton’s presidency? Okay, so you’re not planning to run for office now, but you wouldn’t be the first person to make a career change.
  • If paying under the table, you could get into trouble with the IRS, too. Actually, you don’t need to pay an undocumented nanny under the table. She can apply for what’s known as a “Taxpayer Identification Number” or TIN in lieu of a Social Security number, which you can use for filing payroll taxes. Nevertheless, your nanny may insist on being paid under the table, perhaps unwilling to file taxes herself. In that case, here’s what might happen if the IRS audits you: It will notice that you have small children, that all the parents in the house work, and that you are not claiming the childcare tax credit. That will inevitably raise the question of who is taking care of your children. You can see where this will lead.

If you find a nanny whom you are seriously interested in hiring and who is undocumented, you might want to pay for a consultation with an immigration attorney. This is likely to cost around $100. Perhaps there is some ground upon which the nanny can apply for a temporary work permit or a green card. Do not get your hopes up too high, however. The eligibility categories are few, there’s a years-long wait for green cards in the unskilled worker (EB-5) category that would apply to the nanny as your employee, and the fact of her unlawful presence in the U.S. may trigger additional barriers or penalties.

For more information, see Nannies & Au Pairs: Hiring In-Home Child Care, by Ilona Bray (Nolo).

by: , J.D.

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