Domestic Employees: B-1, A-3 or G-5

• Description
  
  
• Qualifications
  
  
• Application Items

Description
Personal or domestic servants who are accompanying or following to join an employer in the United States are eligible for B-1 visas. This category of domestic employees includes, but is not limited to, cooks, butlers, chauffeurs, housemaids, valets, footmen, nannies, au pairs, mothers' helpers, gardeners, and paid companions.

Those accompanying or following to join an employer who is a foreign diplomat or official are eligible for an A-3 or G-5 visas, depending upon their employer's visa status.


Qualifications
B-1:

For a B-1 visa, domestic employees must demonstrate to a consular officer and/or to DHS that they qualify for a U.S. visa according to the U.S. Immigration and Nationality Act (INA). Section 214(b) of the INA presumes that every B-1/B-2 visa applicant is an intending immigrant. Thus, applicants for a B-1 domestic worker visa must overcome this legal presumption by demonstrating that:

• The purpose of their trip is to enter the United States for work as a domestic employee;
• They plan to remain for a specific, limited period;
• Their employer meets certain qualifications;
• They have evidence of compelling social and economic ties abroad; and
• They have a residence outside the United States as well as other binding ties that will ensure their return abroad at the end of the contract.

Accompanying a Non-Immigrant Visa Holder
Domestic employees who are accompanying or following to join an employer who seeks admission to, or who is already in, the United States in B, E, F, H, I, J, L, M, O, P, Q, or R Non-Immigrant status may be eligible for the B-1 visa classification provided:

1. The employee has been employed outside the United States by the employer for at least one year prior to the date of the employer's admission to the United States, or if the employer-employee relationship existed immediately prior to the time of application,
2. The employer can demonstrate that he has regularly employed (either year-round or seasonally) domestic help over a period of years preceding the time of application;
3. The employee has at least one year's experience as a personal or domestic servant as attested to by statements from previous employers;
4. The employer will be the only provider of employment, and will provide the employee free room and board and round trip airfare as indicated under the terms of the employment contract.
   

Accompanying an American Citizen
Domestic employees who are accompanying or following to join their United States citizen employer in the United States may be eligible for the B-1 visa classification if their American employer ordinarily resides outside the United States and is traveling to the United States temporarily, or the American employer is subject to frequent international transfers lasting two years or more and who, as a condition of employment, is going to reside in the United States for a stay not to exceed four years.

In addition:

1. The employer-employee relationship must have existed for at least 6 months prior to the employer's admission to the United States or, alternatively, that the employer has regularly employed a domestic servant in the same capacity while abroad;
2. The employee has had at least one year experience as a personal or domestic servant by producing statements from previous employers attesting to such experience;
3. The employer will be the only provider of employment, and will provide the employee free room and board and round trip airfare as indicated under the terms of the employment contract.

Note: It is not possible to qualify for a B-1 visa if the United States citizen will reside permanently in the United States, even if the individual concerned has previously been in the United States citizen's employ abroad.

Accompanying a U.S. Legal Permanent Resident
U.S. Legal Permanent Residents (Green card holders) are not permitted to bring their domestic workers to the United States on a B-1 visa under any circumstances.

A-3 or G-5:
An applicant who is the attendant, servant, or personal employee of someone classified A-1 or A-2 or G-1 through G-4 is entitled to the appropriate A-3 or G-5 classification. They must demonstrate entitlement to an A-3 or G-5 classification (e.g., letter of reference from a former employer, evidence of previous employment in that sector, etc.). Consular officers must establish the official status of the employer and the intent of both parties to enter into (or remain in) an employer-employee relationship.


Application Items
All domestics must demonstrate strong financial, social, and family ties abroad that will compel them to return after the contract ends.

Caution: Use only valid documents. Fraud or misrepresentation can result in a permanent visa ineligibility. If confidentiality is of concern, the applicant should bring the documents to the Embassy in a sealed envelope. The Embassy will not make this information available to anyone and will respect the confidentiality of the information.

B-1:
All required documents for any non-immigrant visa plus:

• Current Malaysian employment contract;
• Copy of your employer's visa or other method they will use to enter the United States (their Visa Waiver country passport or U.S. passport);
• Two signed copies of an English-language U.S. employment contract (one copy will be returned to successful applicants and must be presented at the U.S. port of entry) stating that the employer will:
  • Be the only provider of employment for the employee;
  • Provide medical insurance; Provide free room and board and round-trip airfare to/from the United States (not to be deducted from wages);
  • Pay the employee the minimum or prevailing wage (whichever is higher) for an eight hour day as well as any other benefits normally required for U.S. domestic workers in the geographical area of employment;
  • Pay U.S. taxes and social security;
  • Deduct no more than reasonable and voluntarily agreed to on the part of the employee for food and lodging;
  • Pay overtime (time and a half) for work hours exceeding eight in a day or 40 in a week;
  • Agree to not withhold the employee's passport;
  • Include severance provisions;
  • For American employers: Give at least two weeks notice of intent to terminate employment and the employee will give not more than two weeks notice of intent to leave employment; and
  • The contract states the employee's hours of work and that the employee will not accept any other employment while working for the employer.
• The non-immigrant visa or American employer will need to provide a letter from the head office of his/her company (personnel/human resources division) stating:
  • the length of time the employer has worked in Malaysia;
  • that the employer is subject to frequent international transfers lasting two years or more as a condition of employment;
  • that the employer will assume another overseas position upon the termination of the U.S. assignment; and
  • that the employer will be in the United States no longer than four years.

Supporting documents:
Evidence establishing that the applicant's stay in the United States will be temporary. For examples, go to the B-1/B-2 section.

A-3 or G-5:

A-3 and G-5 visa applicants must be interviewed by a consular officer. They must follow the normal application procedures for the general public, including scheduling an interview.

1. The consular officer must be satisfied that the wage to be received by the A-3 or G-5 applicant is a fair wage comparable to that offered in the area of employment and sufficient to overcome public charge concerns. Applications for such visas must include an employment contract signed by the employer and the employee.

The contract must include the following elements:

• A guarantee the employee will be compensated at the state or federal minimum or prevailing wage, whichever is greater. (Please note that the consular officer must be satisfied that any money deducted for food or lodging is no more than reasonable);
• A promise by the employee not to accept any other employment while working for the employer;
• A promise by the employer to not withhold the passport of the employee; and a statement indicating that both parties understand that the employee cannot be required to remain on the premises after working hours without compensation.
• The contract is essential to the process in that it provides the personal employee with a framework within which he and/or she may personally seek certain employment or human rights protections. The employer must pay the domestic's initial travel expenses to the United States, and subsequently to the employer's onward assignment, or to the employee's country of normal residence at the termination of the assignment.

2. A copy of the employer's diplomatic visa and a Note Verbale. The Note Verbale should list the name of the employee, give the employer's title or official status. It should also specify the date of departure from Malaysia, and the purpose of the trip and length of stay in the United States.

Supporting documents:

• Evidence establishing that the applicant's stay in the United States will be temporary. For examples, go to the B-1/B-2 section.

More useful web sites

1. Employment Taxes for Household Employees (by Internal Revenue Service)
2. Minimum wage Laws in the States (by U.S. Dept. of Labor)
3. Wages by area and occupation (by Bureau of Labor Statics - U.S. Dept. of Labor)