If you have small children, the day might come when you decide to hire in-home, or even live-in child care—otherwise known as a nanny. Depending on where in the United States you live, some of the most widely available, affordable, or qualified applicants are from other countries, and lack immigration paperwork. That doesn't stop many parents from hiring them, but you should be aware of the risks, as described below.
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 them 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 breaking the law in this way, you could be fined several hundred dollars.
You don't actually need to pay an undocumented nanny under the table. She can apply for what's known as a "Individual Taxpayer Identification Number" or ITIN in lieu of a Social Security number, which you can use for filing payroll taxes.
Nevertheless, your nanny might insist on being paid under the table, perhaps unwilling to file taxes. In that case, here's what might happen if the IRS audits you: It will notice that you have small children, perhaps that all the parents in the house work at outside jobs, and that you are not claiming the childcare tax credit. That will inevitably raise the question of who is taking care of the children. You can see where this will lead.
U.S. immigration enforcement authorities are always 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. And if arrested while at your home or somewhere caring for your children, they could be left alone. It has happened. Immigration enforcement authorities do not consider childcare to be among their responsibilities.
What's more, if your nanny is eventually removed from the United States, the sudden and complete separation could be traumatic for your children.
Perhaps you remember the term Nannygate? That's when Zoe Baird failed to win nomination as attorney general during Bill Clinton's presidency. Maybe you're not planning to run for office now, but you wouldn't be the first person to make a career change. And the public judgment for your illegal act could be harsh.
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 $150. 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-3) category that would apply to the nanny as your employee, and the fact of the nanny's unlawful presence in the U.S. may trigger additional barriers or penalties.
An experienced attorney can assist with the task of figuring out whether there's a viable way for your childcare provider to immigrate to the United States and help prepare the paperwork and keep the case on track.