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This is one of the most common questions we hear – normally from people who either want to help a valued employee and family friend or foreign nationals themselves who work in these types of positions. Often, these individuals have become a part of the family and it’s only natural to want to help them. Unfortunately, there is often no easy answer for individuals working in these positions. Everything depends on the unique situation of the particular individual involved. We can’t give any solid answers absent a consultation with this person. However, there are some things that we know are often problematic for people working in these types of positions, and that we believe are worth discussing here. First, there is generally no non-immigrant visa for employment directly applicable to this type of employment. There are visas for “professional” (Bachelor’s-degree-required) jobs, transferees between entities of multinational companies, investors, and several other categories – but nothing designed to permit this type of work. Then, there’s the another problem: very often the person working in this capacity does not have valid legal status in the U.S. (with the frequent exception of au pairs on J-1 visas – but sometimes a distinction without a practical difference due to the limitations of the J-1). This means that the foreign national entered on a visa which has now expired, or that the foreign national entered illegally without a visa (called Entry Without Inspection by an immigration officer or “EWI”). Once a person is without legal status, they generally can not be brought back into legal status while remaining in the U.S. except in certain very specific circumstances. For instance, if an individual has been in the U.S. a long time and had some type of permanent residence case on file before April 30, 2001 they may in some cases still be eligible to adjust status by simply paying a fine under the 245(i) penalty provision. Or, if the person entered legally, marriage to a U.S. citizen makes it possible to obtain permanent residence. In some cases, the foreign national can solve the problem of having been out of status by leaving the U.S. to process for a non-immigrant visa or the final stage of permanent residence and then returning. However, the ability to do this is rare; more often the foreign national cannot leave the U.S. without becoming subject to the three- or ten-year bars to reentry. If the person is in valid legal status, we next need to look at the nature of that status, when it expires, and what can be done towards a longer-term non-immigrant visa or permanent residence in the time we have remaining. Every case is different and many have unique features or quirks offering some possibility (even if in the distant future). Only a full evaluation of the circumstances involved by an attorney can determine the options.
You would need to comply with the laws governing employment of those authorized to work, see our I-9 FAQs. You will also need to comply with applicable laws concerning payment of taxes and social security. Consult your tax professional for advice on how to comply with these requirements.