Tara J. Goldsmith Immigration Law Blog on Lawyers.com

As an immigration lawyer in New York and as a working mom, I have a lot of friends that also work.  Many of these friends are only able to work because they have a reliable and loving nanny at home to take care of their children.  Unfortunately the reality is that many of these nannies are here illegally.  I would say at least once a week I get a call or email from a friend (or a friend of friend) with the same question: “Our nanny has become part of our family – how do we sponsor her for a green card?” 

I cringe when I hear this question because the reality is that generally speaking, the answer is, from a practical point of view: “you cant.”  As a lawyer, my job is to come up with solutions to help people.  Yet there is often no way around this.  If you are here illegally (ie if you have overstayed your tourist status or entered the country without inspection) the laws essentially say that there is no way to become legal.  No matter how many times I have to explain the legalities behind my answer, it still frustrates me.  I know how invaluable a babysitter can be to a family.  Many of the mothers I speak with would do anything or pay any amount to sponsor their nannies for green cards. 

Unfortunately, that’s not how it works.  Even a family that has the resources and the patience to sponsor their nanny for a green card often is prevented from doing so because of our immigration laws.  Section 245 allows people to become permanent residents (green card holders) without leaving the U.S. through a process called "adjustment of status." Generally, people who are in the US illegally are barred from adjusting their status in the U.S. (I say generally because there are some limited exceptions).  If they return home to “pick up” the green card after all the paperwork has been approved on their behalf, under a very draconian section of the laws, he/she would be barred from returning to the US for 3 years (if they were illegally in the US from six months up to one year) or even 10 years (if they were illegally in the US for more than one year) unless they have close family in the US and can obtain a waiver.  It’s the ultimate catch-22.  So basically what this means is that under the current laws, you can go through complicated paperwork and years of waiting and paying a lot of money to ultimately find out that under our current laws there is no realistic way to actually become legal. 

The other thing that really bothers me is that often times, the alien has hired an immigration lawyer to help them get a green card yet none of this is explained (or maybe it is, but not well enough for the alien to fully understand his/her predicament).  While there are a lot of great, caring and very smart immigration lawyers out there, unfortunately there are also many lawyers and “visa consultants” who see an opportunity to take advantage.  They see potential clients who will pay anything for the hope of a green card.  I usually take a conservative approach and think that until our laws are changed, it doesn’t make sense to pay a lot of money for something that ultimately you wont be able to get.  There are some NY immigration lawyers that are aggressive and think “well, you never know – why not try as maybe the immigration laws could change.”  That’s fine, as long as this is explained clearly to the clients and they are willing to assume the risks.

So my advice when someone calls me about sponsoring their nanny is this:

First, go and speak with a reputable immigration attorney.  There are sometimes exceptions to the general rule and it is worth a consultation to find out if the particular case falls within one of these exceptions and thus it might be possible for something to get accomplished.  I just had this situation today.  My friend called me about sponsoring her nanny and I immediately launched into my “its very sad but, probably nothing can be done” speech.  But then I started to ask questions.  She is from El Salvador and we discovered she qualifies for something called TPS (temporary protected status).  I completed a case recently where the nanny had started a previous sponsorship before April 30, 2001 and I was able to help her because she had what is called “245i protection.”  We also recently started a case for a nanny who came to the US with a student visa and are able to process her case because the 3 and 10 year bars I mentioned previously do not apply to students who have F1 visas.  So you never know until you speak to an experienced immigration lawyer.

Second, if your nanny has already been working with an attorney, the best thing you can do for your nanny is to speak to this attorney and find out where he/she is in the process and how the attorney expects that ultimately the green card will be approved in spite of the draconian laws I mentioned above.

Third, and perhaps most important, speak to your local politicians about changing our immigration laws.  Write a letter to your congressman asking him/her to fix our broken immigration system.  The 3 and 10 year bars only encourage more people to remain in the US illegally, knowing that if they leave, they may never be able to return.  The many years it takes to sponsor a nanny for a green card makes it almost impossible to endure.  If legal, these nannies would pay taxes, drive cars (helping the auto industry and the safety of our streets), travel, etc. ultimately contributing to our struggling economy.  Advocate for your nanny at the grassroots level and hopefully if enough of us do this, we will be able to do a lot more to help deserving people and the needs of our families, as well as our economy.