Domestic Employee Visa
A general outline of the requirements to get your domestic worker to the US.
First, obtaining a domestic employee visa (B1 visa) is quite difficult, however, it is not impossible!
Second, if you are moving back to the US permanently then you can’t bring your domestic employee with you. By regulation, neither domestic employees of U.S. citizens who permanently reside in or are resuming permanent residence in the United States, nor domestic employees of U.S. Legal Permanent Residents, can obtain non-immigrant domestic employee visas. If the employer of the domestic servant is a U.S. citizen who is moving back to the U.S. on a permanent basis, the employer cannot bring a domestic employee back to the U.S.
Third, both spouse have to be eligible employers, meaning both have to be US citizens or you’re entering the US on the B, E, F, H, I, J, L, M, O, P, or Q non-immigrant status.
Fourth, you must pay the domestic employee minimum or prevailing wage, whichever is greater, for the entire time that the domestic employee is in the United States.
You may have to withhold from your domestic employee’s wages the amount due for federal and state taxes. At the end of the year, you should give her a W-2 form and help her file income taxes as required. Your domestic employee will need health and medical insurance. Some states require workmen’s compensation for employees. You may also be liable for unemployment compensation taxes. You must pay your domestic employee the wage specified in the contract, provide free room and board and fulfill the other terms of the employment contract presented to the Embassy at the time of the visa application.
Finally, the common reason for visa denial is the legal presumption that each person applying for a visa to enter the United States is an intending immigrant or that the person is coming to the United States for an impermissible or illegal purpose. In order to overcome this presumption of law, domestic employee visa applicants must prove to the satisfaction of the Consular Officer that the domestic employee has a residence abroad which she has no intention of abandoning. Please bear in mind that this presumption is a difficult one to overcome. Normally this is referred to as “strong ties” to the home country or residence. The boiler plate denial is usually in this language.
New Consular Fees in Effect on July 13, 2010
On June 28, 2010, the Department of State published its Schedule of Fees for Consular Services in the Federal Register. The schedule includes fees for passports, immigrant visas and other consular services. The changes will take effect on July 13, 15 days after publication in the Federal Register.
The 27 adjusted fees are based on a Cost of Service Study completed by the Bureau of Consular Affairs in June 2009. The study, which was the most detailed and exhaustive ever conducted by the Department of State, established the true cost of providing these consular services, which by law must be recovered through collection of fees.
Non-immigrant visa application such as the tourist visa and student visa will now be $140
K Visa will cost $350 a major increase from the previous $131
Passport book for an adult wil be $135
Consular Report of Birth Abroad will increase from the current $65 to $100
Renunciation of US Citizenship will be $450
Class Action Lawsuit Filed Against State Department For Arbitrarily Returning K1 Fiance Visa at Consular Processing
A class action lawsuit has been filed in Oregon charging the U.S. State Department and Department of Homeland Security with unlawfully and arbitrarily returning U.S. petitioner’s Fiance(e) K1 visa at the U.S. Consulate. Plaintiffs are deprived of due process of law and petition approval denied withheld contrary to constitutional right contrary to procedure required by law.
Thousands of families across the country and around the world have been separated due to a colossal sparring match between the defendant agencies, and because of internal dissent within each agency.
Read more here.
Visa Denial: 214(b), 221(g), or Administrative Processing – a Primer
Visa Refusal under INA 214(b), 221g, and Administrative Processing
The US Embassy refuse visa applications for a myriad of reasons. US consular officers review the documents, investigate the individual’s background, and conduct a personal interview to evaluate whether a visa applicant is eligible. When an immigrant visa case is not approved the applicant is issued a 221(g) or “blue sheet” indicating the evidence submitted was insufficient. When a non-immigrant visa is not approved, it’s basically due to the requirements of section 214b, wherein the applicant did not have evidence of strong ties to a residence abroad to compel the applicant to return home after a short, temporary visit. Administrative processing is sometimes equivalent to a 221(g) refusal as the consular officer was unable to approve the case based on the evidence submitted, or a discrepancy was discovered requiring additional time to investigate. Administrative processing cases may languish in visa purgatory for a long time.
214(b)
Section 214(b) is part of the Immigration and Nationality Act (INA). Most visa applicants apply for a tourist visa or a student visa in this category. To qualify for a visitor or student visa, a prospective visitor or student applicant must meaningful evidence of funding, valid purpose of the trip, and strong ties in a residence abroad to compel the applicant to return to after the visit.
The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. Evidence of “strong ties” may be illustrated by consistent and steady history of employment, sufficient collateral or property ownership to cover travel expenses, and a succinct and sincere reason for the visit. These are compelling factors the consular officered consider when evaluating an applicant’s eligibility for the visa. The brief interview with the applicant is also valuable in the consular officer’s decision to approve or deny the visa.
221(g)
U.S. consulates abroad have been known to deny visas based upon INA Section 221(g) even after the United States Citizenship and Immigration Services (USCIS) has approved a petition for the visa application.
In a 221(g) case, the consular officers determine that the requirements for a petition-based visa are not met by an applicant. They can refuse to issue the visa under Section 221(g). When they do so, they also request that the USCIS revoke the petition that was approved earlier.
Even though the USCIS has the primary authority to determine whether or not a person meets the requirements for a particular, petition-based visa classification, the consulate may reach a different conclusion and request that the USCIS reconsider its original approval of a petition. What can happen is that new, negative information can come to light at the time of the interview and the interviewing consular officer may conclude that the visa applicant either does not appear to meet the requirements of a fiancé/e. Essentially the fiance(e) did not convince the consular officer that the relationship is bona fide and possibly a sham marriage entered into to circumvent US Immigration law. Cases issued 221(g) are equivalent to a denial, however, some languish in visa purgatory similar to administrative processing.
Administrative Processing
In cases pending in Administrative Processing (AP) the consular officer may need more time to review the case before determining whether the applicant is eligible for the visa. In immigrant visa cases such as the fiance(e) visa, the consular officer may conclude at the interview that there’s not enough convincing evidence to deny the case nor approve it, there may be some red flag issue, or a discrepancy in the case to warrant a secondary review. Cases in AP may take months to conclude, however, in this writer’s experience, providing additional compelling evidence of the bona fides of the applicant’s relationship to the American petition may assist the consular officer in making a definitive decision in the case.
AP is a state of flux that leaves applicants frustrated and confused as there’s no definitive guidelines as to what the immigration issues are and whether the applicants can do anything to compel the consular officer to issue the visa. It is within the discretion of the consular officer to hold the case and investigate it further, thereby leaving the applicant with neither an approval nor denial.
Whether the case is issued a 214(b), 221(g) or placed in administrative processing, a competent immigration attorney should be able to review the case and provide the best course of action based on the applicant’s unique sets of facts. Consular processing attorneys are in a highly advantageous position to assist since they are able to inquire directly with the consulate and embassy where the applicant’s case was denied.
Submitting False Documents for a Visa
In order to enter or remain in the United States and be eligible for various immigration-related benefits, non-citizens (aliens) must comply with a number of document requirements under the Immigration and Nationality Act (INA).
Attempts to circumvent these requirements are generally prohibited. Under the INA, an alien who uses, acquires, or produces fraudulent documents for immigration-related purposes may be subjected to civil penalties and denied certain immigration benefits.
Additionally, certain fraudulent actions may carry criminal penalties under both the INA or the United States Criminal Code.
In general, INA § 274C prohibits the fraudulent production, use, or possession of documents in order to either (1) acquire benefits under the INA or (2) satisfy an INA requirement.
Specifically, INA § 274C makes it unlawful for any person or entity (including non-aliens) to
- knowingly forge, counterfeit, alter, or falsely make6 any document for the purpose of satisfying an INA requirement or obtaining a benefit under the INA;
- use, attempt to use, possess, obtain, accept, receive, or provide any forged, counterfeit, altered, or falsely made document for the purpose of satisfying an INA requirement or obtaining a benefit under the INA;
- use, attempt to use, provide, or attempt to provide any document lawfully issued to or with respect to a person other than the possessor for the purpose of satisfying an INA requirement or obtaining a benefit under the INA;
- accept, receive or provide any document lawfully issued to or with respect to a person other than the possessor for the purpose of complying with INA § 274A(b) (relating to alien employment verification) or obtaining a benefit under the INA;
- prepare, file, or assist another in preparing or filing, any application for benefits under the INA, or any document required under the INA, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted; or present before boarding a common carrier for the purpose of coming to the United States a document which relates to the alien’s eligibility to enter the United States, and subsequently fail to present such document to an immigration officer upon arrival at a United States port of entry.
Persons or entities found to have violated INA § 274C may be ordered to cease and desist engaging in the unlawful activity and assessed a civil money penalty. In the case of first-time offenders, this penalty is between $275 and $2,200 for each fraudulent document or proscribed activity (and between $250 and $2,000 for each violation prior to September 1999).
For subsequent offenses, the civil penalty is between $2,200 and $5,500 (and between $2,000 and $5,000 for each violation prior to September 1999).
