For decades, undocumented immigrants from non-English speaking countries have sought employment as domestics in American households where they could have a place to live and work at the same time. Most employers are aware of the potential liabilities with hiring illegal workers in the home and some celebrities and high profile employers have been exposed publicly for doing so. There is also a decreasing trend overall of household employees wanting to ‘live-in’ with a family, especially with immigration laws being far more stringent and documentation of illegal workers being far more greatly enforced.
If an employer is interested in live-in help, particularly with regard to noncitizens, then an employer should take great care to adhere to all labor laws and ensure a professional legal working environment for their employees. The following questions and answers will help ensure household employers know more about the employment of a foreign domestic worker.
Q: What are the criteria for hiring a foreign worker?
According to the U.S. Department of Labor Employment & Training Administration (DOLETA), qualifying criteria for hiring a foreign worker include the following.
- The foreign worker must be hired as a full-time employee.
- The employer must have a bona fide job opening.
- Job requirements cannot be tailored to the foreign worker’s qualifications but must follow what is customarily required for the job within the United States.
- The employer must pay at least the prevailing wage for the job in the location of the anticipated job.
Q: How do I hire or sponsor someone who is not legally authorized to work in the United States?
According to DOLETA, hiring foreign workers for employment in the United States normally requires approval from several governmental agencies. A labor certification filed with the Department of Labor is often the first step. The employer needs to complete Form 9089 (Application for Permanent Employment Certification) or Form 9142 (Application for Temporary Employment Certification) as appropriate. The Department of Labor works with the local State Workforce Agency (SWA) to process the form. Then, an employer must petition the U.S. Citizenship and Immigration Services (USCIS) for a visa by submitting Form I-140 (Immigrant Petition for Alien Worker). With a visa number issued by the State Department, the foreign worker gains U.S. entry. Also, an applicant must prove that she or he is admissible to the United States under the Immigration and Nationality Act (INA). For more information, see www.foreignlaborcert.doleta.gov/perm.cfm.
Q: What’s the difference between an immigrant and a nonimmigrant?
An immigrant is a foreign-born person who has been sponsored by a qualifying family member or employer, and who has the approval to reside permanently in the U.S. as a lawful permanent resident. This person holds a Resident Alien Card, known often as a green card.
A nonimmigrant is an alien who seeks entry into the United States or who has already been admitted for a specific purpose for a temporary period of time. These temporary periods can range from a few days to many years. Nonimmigrants come to the U.S. for many different purposes, including temporary work, longer-term work, study, travel, training, or participation in athletic, cultural, or performance events. In general, there are two types of visas issued to nonimmigrants employed as domestic workers:
- A-3, Domestic employee of an A-1 or A-2 visa (for diplomat), or
- B-1, Domestic employee (domestic worker accompanying or following to join an employer to the U.S., usually for temporary trips)
Q: I have a nanny candidate who is foreign and here on an H-4 visa. Is she eligible to work in the U.S.?
No, H-4 visa status does not allow the nanny to work in the U.S. Be sure to check the potential employee’s visa status if they are from outside the U.S. Certain visas are only dependent visas and if the employee is married to another noncitizen the visa status may or may not allow for the candidate to work. The nanny applicant is residing in the U.S on an H-4 visa with a spouse on an H-1B visa, and therefore she is NOT eligible to work. However, if she had a J-2 visa she may work as long as the principle income of the couple still comes from the J-1 holder (her husband).
Q: What’s the difference between a nanny and an au pair?
An au pair is a young foreign person (usually 18-26 years of age) who lives with an American family for a full year. The au pair needs to commit to the position for one year but may extend for another year if necessary. The au pair requires an au pair visa (J-1) to come into the United States and are not to work more than ten hours a day or 45 hours per week. Families wishing to hire an au pair must work with a designated au pair agency, which can be found on the US Department of State website. Au pair agencies (many of which are online) match an au pair to the family, organize the visa and flights, screen the au pair and even may provide au pair orientation, CPR courses, health, and travel insurance, and driving training. Bear in mind that the au pair is considered to be a household employee as well. Au pairs are generally exempt from Social Security and Medicare taxes but his or her income is considered a wage and is therefore subject to Federal income tax unless he or she arrived at the end part of the calendar year and will make below the minimum amount required for taxation in that year.
Q: What employment rights do temporary nonimmigrants have?
Temporary nonimmigrant workers:
- Must be treated and paid fairly;
- Must be paid at or above the prevailing wage (federal legal minimum wage or state minimum wage—whichever is higher), in the same manner as a U.S. worker;
- Are entitled to overtime pay (usually one and a half times the amount of their wage for any hours worked over 40 hours per week), and any deductions should not diminish their legal wage rate;
- Must not be held in a job against their will;
- Must not be discriminated against;
- Must work in a healthy and safe environment;
- Can report abuse without retaliation;
- Can request help from unions, immigrant and labor rights groups and other groups; and,
- Can seek justice in U.S. courts.
Q: What are the consequences of hiring an unauthorized alien?
United States employers who knowingly employ an unauthorized alien in the United States can be ordered to cease and desist, and be fined a civil penalty for failing to comply with Form I-9. Employers who commit a first offense for a single employee or two may receive only an educational visit and a warning. Employers must verify the identity and employment eligibility of anyone to be hired through the completion of Form I-9 (Employment Eligibility Verification). Each completed I-9 must be kept on file for at least three years, or one year after employment ends, whichever is longer. Employers who fail to properly complete, retain, and present Form I-9 for inspection (as required by federal law) may incur civil penalties of up to $1,100 per employee. As well as fines, criminal penalties could include up to six months of imprisonment, as issued by the U.S. Department of Homeland Security. Employees who knowingly use fraudulent documents, identity documents issued to other people, or other false materials to meet the employment eligibility verification requirements in Form I-9 may face fines and imprisonment for up to five years.