Immigration for nannies, caregivers and custodians

US Immigration Law provides that certain unskilled workers are able to immigrate to the US based on employment.  The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.  In order to be petitioned in this category, a labor certification and a permanent, full-time job offer are required.

Under the most recent visa bulletin, immigration in this category will take approximately 4 years.  Individuals that have a valid job offer in the “other workers” category, and do not mind waiting for the classification to be “current” for processing, may consider this option.  Note that beginning the process by filing a labor certification does not grant any legal status.  At the end of the estimated 4 year wait, a beneficiary already in the US will only be able to adjust status if they are maintaining lawful status or protected under Section 245(i).  Meanwhile, beneficiaries located in the Philippines will be able to process their immigrant visa, if otherwise eligible, at the Embassy in Manila.

Like most employment-based Green Card and Immigrant Visa processing, the three steps are: 1) Labor Certification by the US Department of Labor; 2) Approval of an Immigrant Visa Petition; and 3) Applying for a Green Card (if eligible and in the US) or an Immigrant Visa (if abroad).

Labor Certification is mandated as the first step in most employment-based immigration for the purpose of protecting the US labor market.  Since March 28, 2005, labor certification applications are submitted to the US Department of Labor (DOL) using its Program Electronic Management Review System (PERM).  The PERM process is required for employment-based second (EB-2) and third (EB-3) cases, including the “other workers” category.

The labor certification process entails a test of the local labor market for availability of qualified and available US workers.  Recruitment efforts for the position must entail advertising the position at the level of or above the prevailing wage.  Employer attestations are submitted with to the DOL to indicate compliance with recruitment and other PERM requirements.  Employers must create and maintain a PERM audit file with evidence of proper recruitment efforts and supporting documentation.  The DOL may audit the employer to verify compliance.

Following approval of the Labor Certification, the employment-based immigrant visa petition is filed. The filing must include comprehensive proof of the employee’s qualifications for the applicable classification and with proof that the employer can pay the prevailing wage since the priority date.  Once the petition is approved, it is time to wait for the category to be current.  Once the wait is over and the “other workers” category is current for processing, applicants in the US lawfully or protected under Section 245(i) can submit Adjustment of Status applications.  If the applicant is abroad, consular processing of the immigrant visa may be possible. It is relevant to note that priority date movement changes month-to-month, and the actual wait in line for visa issuance may be sooner or take longer than the current estimate of 4 years.

Before embarking on this multi-year process, which will have long-lasting effects on the company and worker, it is critical that the proffered position, employer, and beneficiary are carefully evaluated to ensure eligibility and the highest chance of a successful outcome. An attorney experienced in employment-based immigration should be enlisted for professional guidance.

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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience.  His offices are located in Irvine, California.