J Visa Au Pair Program and EduCare Program

J Visa and Au Pair Program, myattorneysa.com

 

Introduction

Under Department of State (DOS) regulations and guidance, a foreign national between the ages of 18 and 26 from a country with which the United States has diplomatic relations may seek a J visa in order to participate in the Au Pair Program. The Au Pair Program allows the foreign national to reside with an American family for a period of one year while participating in their home life, providing limited childcare services, and enrolling in classes at a U.S. post-secondary institution. The DOS also created a subcategory within the Au Pair Program called the EduCare Program. The EduCare Program has a smaller childcare component and a more prominent educational component.

In this article, we will examine the Au Pair Program and the EduCare Program in detail, looking at the applicable regulations and agency guidance.

Please see our website's selection of articles on Work Visas [see category] and Student Visas [see category] to learn about programs that may provide similar benefits.

Resources

This article will rely primarily on the Au Pair Program regulations in 22 C.F.R. 62.31 and the DOS's agency guidance in the Foreign Affairs Manual (FAM) at 9 FAM 402.5-6(E)(2). We have uploaded these two resources along with a capture of the DOS's online overview of the Au Pair Program for your convenience:

22 C.F.R. 62.31 [PDF version]
9 FAM 402.5-6(E)(2) [PDF version]
“Au Pair Program” (DOS webpage) [PDF version]

Overview

In order to come to the United States in J nonimmigrant status as an au pair, a foreign national must be sponsored by an organization running an approved Au Pair Program. The regulations that we will discuss in this article set the rules for sponsors, au pairs, and families with whom au pairs are placed.

Implementing Regulations

The current regulations for the Au Pair Program, which became effective on July 21, 2008, are found in the DOS regulations at 22 C.F.R. 62.31. In the foregoing sections, we will examine each section of the regulations in order along with the DOS's internal guidance in the FAM.

Overview and Purpose of the Au Pair Program and EduCare Program

22 C.F.R. 62.31(a) describes the Au Pair Program and the EduCare Program as follows:

[Under the Au Pair Program] foreign nationals are afforded the opportunity to live with an American host family and participate directly in the home life of the host family.

As we will discuss in more detail, 22 C.F.R. 62.31(d)(1) restricts participation to those foreign nationals aged 18-26.

The regulation makes clear that all Au Pair Program participants must do the following while participating:

1. Live with an American host family and participate directly in the life of the family;
2. Provide child care services to the host family; and
3. Attend a U.S. post-secondary educational institution.

A participant in the Au Pair Program provides up to but no more than 45 hours of child care services per week to the host family and completes not less than six semester credit hours of academic course work or its equivalent during the one year period of program participation. A participant in the EduCare Program must provide up to but no more than 30 hours of child care services per week and completes not less than 12 semester credit hours of academic course work or its equivalent during the same period. In short, the EduCare Program permits fewer child care hours but has a more substantial academic requirement.

Au Pair Program Designation and Requirements

Under 22 C.F.R. 62.31(b), the DOS may designate bona fide au pair exchange programs satisfying the objectives of the Au Pair Program as defined in 22 C.F.R. 62.31(a) (see previous section). The designation lasts for a period of two years. The DOS has sole discretion regarding whether to designate a program. The designation of a program may be revoked by the DOS for “good cause.”

22 C.F.R. 62.31(c)(1)-(9) sets forth the Au Pair Program requirements.

First, the exchange program must limit the participation of foreign nationals to not more than one year. This applies for all Au Pair Program participants including EduCare.

Second, the exchange program must limit the hours of child care services to be provided by the participant. EduCare participants cannot be obligated to provide more than 10 hours of child care services per day or more than 30 hours per week. All other participants cannot be obligated to provide more than 10 hours of child care services per day or more than 45 hours per week.

Third, the exchange program must require that participants register for and attend classes offered by an accredited U.S. post-secondary institution. EduCare participants must register for and attend not less than twelve semester hours of academic credit or its equivalent. The requirement is only six semester hours or its equivalent for all other Au Pair participants.

Fourth, the exchange program must require supervision and adequate training for all officers, employees, agents, and volunteers acting on their behalf.

Fifth, the exchange program must require that the Au Pair participant is placed with a host family within one hour's driving time of the home or local organization representative authorized to act on the sponsor's behalf in both routine and emergency matters involving the participant's participation in the program.

Sixth, the exchange program must require that each of its local organization representatives maintain a record of all personal monthly contacts with each Au Pair participant and host family for which he or she is responsible, as well as a record of all issues and problems discussed.

Seventh, all local organization representatives must be required to contact Au Pair participants and host families twice monthly for the first two months following a placement other than the initial placement for which the Au Pair participant entered the United States.

Eighth, the exchange program must limit local organizational representatives who are not devoting their full time and attention to program obligations to being responsible for no more than fifteen au pairs and host families.

Finally, the exchange program must ensure that each local organization representative is provided with adequate support services by a regional organization representative.

Participant Requirements

22 C.F.R. 62.31(d)(1)-(6) sets forth the requirements for au pairs, or participants, in the Au Pair Program. These requirements apply equally to EduCare au pairs and all other au pairs. Sponsors are required to ensure that participants meet the requirements:

1. Participants must be between the ages of 18 and 26;
2. Must have graduated secondary school or its equivalent;
3. Must be proficient in spoken English;
4. Must be capable of participating fully in the program as evinced by satisfactorily completing a physical examination;
5. Must have been personally interviewed in English by an organizational representative, who must have prepared a report of the interview and provided it to the host family;
6. Must have successfully passed a background investigation that includes: (1) verification of school; (2) three non-family related personal and employment references; (3) a criminal background check and its recognized equivalent; and (4) a personality profile.

The personality profile described in 22 C.F.R. 62.31(d)(6) must be based on a psychometric test designed to measure differences in characteristics among Au Pair Program applicants when compared against the characteristics considered to be most important for successful participation in the Au Pair Program.

Requirements for Placement of Au Pairs

22 C.F.R. 62.31(e) requires sponsors to secure a host family placement for each au pair prior to the au pair's departure from his or her home country. 22 C.F.R. 62.31(e)(1)-(7) regulation sets forth several prohibitions for sponsors regarding the placement of au pairs.

First, an au pair may not be placed with a host family unless the host family has specifically agreed that a parent or other responsible adult will remain in the home for the first three days following the arrival of the au pair.

Second, an au pair cannot be placed with a host family having a child under the age of three months unless a parent or other responsible adult is also present in the home.

Third, an EduCare au pair cannot be placed with a family having pre-school children unless the home has alternative full-time arrangements for the supervision of the pre-school child or children. This requirement is due to the lower child care requirements and more substantial educational requirements for EduCare au pairs. For all other au pairs, a participant may not be placed with a host family that has children under the age of two unless he or she has at least 200 hours of documented infant child care experience.

Fourth, an au pair cannot be placed in with a host family that has a special needs child, as identified by the host family, unless the following requirements are met:

The au pair specifically identifies his or her past experience, skills, or training in the care of special needs children; and
The host family has reviewed the au pair's credentials and acknowledged in writing the experience, skills, or training identified by the au pair.

It is worth noting that EduCare participants may be placed in homes with special needs children provided that the requirements of 22 C.F.R. 62.31(e)(4) are met.

Fifth, an au pair may not be placed with a host family unless a written agreement has been entered into between the au pair and the host family detailing the au pair's child care service obligations. The agreement must be signed by both the au pair and the host family prior to the au pair's departure from his or her home country. The agreement must clearly state whether the au pair is a participant in the EduCare Program or not. The agreement must limit the au pair's child care obligations to those outlined in 22 C.F.R. 62.31(c) (with the stricter limits for EduCare au pairs).

Sixth, an au pair may not be placed with a host family that cannot provide him or her with a “suitable private bedroom.”

Seventh and finally, the au pair may not be placed with a host family unless the host family has interviewed the au pair by telephone prior to the departure of the au pair from his or her host country.

In general, these requirements are designed to ensure that both participating au pairs and host families agree to terms prior to the au pair's arrival in the United States.

Au Pairs May Not be Placed With Family Members

The FAM provides an additional restriction at 9 FAM 402.5-6(E)(2)(c). An au pair may not be placed in the home of a family or relative. This applies regardless of the distance in degree of relationship. For example, the FAM specifies that an au pair cannot be placed in a home with a third cousin or with a great aunt or uncle, much less closer family relationships.

Special Orientation Requirements for Au Pairs

Sponsors must follow the general J exchange program orientation requirements set forth in 22 C.F.R. 62.10. Please see our full article on the general orientation requirements [see article]. In addition to the general requirements, sponsors must provide au pairs with the following information in accord with 22 C.F.R. 62.31(f)(1)-(5) (paraphrased):

1. A copy of all of the operating procedures, rules, and regulations (including information regarding a grievance process) which govern the au pair's participation in the program;
2. A detailed profile of the family and the community in which the au pair will be placed;
3. A detailed profile of the educational institutions in the community in which the au pair will be placed (including the financial cost of attendance at these institutions);
4. A detailed summary of travel statements; and
5. A copy of the DOS's written statement and brochure on the Au Pair Program.

Training of Au Pairs

Under 22 C.F.R. 62.31(g), exchange program sponsors are required to provide each au pair participant with the following child development and child safety training prior to placement with a host family:

1. Not less than eight hours of child safety instruction with at least four hours of instruction being infant-related; and
2. Not less than 24 hours of child development instruction with at least four hours of instruction being devoted to specific training for children under the age of two.

Host Family Selection

Exchange program sponsors are required to adequately screen all host families. Under 22 C.F.R. 62.31(h), sponsors are required to, at a minimum (paraphrased):

1. Require that the host parents are either U.S. citizens or lawful permanent residents;
2. Require that the host parents are fluent in spoken English;
3. Require that all adult family members who are residents in the host family home have been interviewed by a representative of the sponsor organization;
4. Require that the host parents and all other adults living full-time in the host family household have successfully passed a background investigation including employment and personal character references;
5. Require that the host family has adequate financial resources to meet all of its hosting obligations;
6. Provide a written detailed summary of the exchange program and the parameters of the duties, participation, and obligations of the host family and the au pairs;
7. Provide the host family with the prospective au pair's complete application (including references).

Special Orientation Requirements for Host Families

Sponsors are required to provide an orientation for host families in accord with the general J exchange program orientation rules in 22 C.F.R. 62.10. Please see our full article for an overview of the orientation rules [see article]. Under 22 C.F.R. 62.31(i), sponsors must meet special orientation requirements for host families in addition to those found in 22 C.F.R. 62.10.

First, the sponsor must inform all host families of the “philosophy, rules, and regulations” governing the exchange program. Sponsors must provide all families with a copy of the DOS's written statement and brochure on the Au Pair Program.

Second, sponsors must provide host families with a complete copy of the DOS's Exchange Visitor Program regulations. This includes supplemental information.

Third, sponsors must advise selected host families that they are obligated to attend at least one family day conference sponsored by the Au Pair organization during the placement year. The host family's attendance at a family day conference is a condition of participation in the exchange program. Failure to attend “will be grounds for possible termination of their continued or future program participation.”

Fourth and finally, the sponsor organization's local counselor responsible for the placement of the au pair must contact the host family and the au pair within 48 hours of the arrival of the au pair. Subsequently, the local counselor must meet in person with the host family and the au pair within two weeks of the arrival of the au pair at the host family home.

Wages and Hours Requirements

Sponsors must ensure that au pair participants are properly compensated for their work, are not forced to work more than the maximum number of hours set forth in the regulations, and receive at least the minimum amounts of required time off.

Under 22 C.F.R. 62.31(j)(1), sponsors must ensure that au pairs are compensated at a weekly rate based upon 45 hours of child care services per week and paid in accord with the requirements of the Fair Labor Standards Act. EduCare participants must be compensated at a weekly rate of 75-percent of the weekly rate paid to all other au pairs.

Under 22 C.F.R. 62.31(j)(2), sponsors must ensure that au pairs do not provide more than 10 hours of childcare per day. Furthermore, sponsors must ensure that EduCare au pairs are capped at 30 hours of child care in any one week and all other au pairs at 45 hours.

Under 22 C.F.R. 62.31(j)(3), sponsors must ensure that all au pairs are provided with, at a minimum, one and one-half days off per week in addition to one complete weekend off each month.

Finally, 22 C.F.R. 62.31(j)(4) requires that au pairs receive two weeks of paid vacation.

Educational Component

22 C.F.R. 62.31(k) sets forth the rules for the educational component of au pairs.

22 C.F.R. 62.31(k)(1) requires that all au pairs meet the minimum educational requirements. As we discussed earlier, EduCare au pairs are required to complete at least 12 semester hours (or the equivalent) of academic credit in formal educational settings at accredited post-secondary institutions, while the requirement is only six hours for all other au pairs. Host families must agree to facilitate the enrollment of au pairs in accredited U.S. post-secondary institutions. A host family must also pay the cost of the academic course work at an amount not to exceed $1,000 for EduCare au pairs and $500 for all other au pairs.

22 C.F.R. 62.31(k)(2) deals with the educational requirement for au pairs who receive an extension of program participation. We discuss extensions later in the article [see section].

Under 22 C.F.R. 62.31(K)(2)(i), host families and au pairs will have the same coursework obligation in a 12- or nine-month extension period that they had in the initial period.

However, under 22 C.F.R. 62.31(k)(2)(ii), the coursework obligation is halved in the case of a six month extension. Accordingly, an EduCare participant must complete not less than six semester hours of cousework(or the equivalent) in a six-month extension and the host family is only obligated to contribute up to $500 for the coursework. The requirements are three hours and $250 respectively for all other au pairs.

Monitoring and Reporting Requirements

Sponsors are required to fully monitor exchanges under the Au Pair Program. 22 C.F.R. 62.31(l)(1)-(4) sets forth the minimum requirements.

First, the local counselor must make monthly personal contact with each au pair and host family for which he or she is responsible. Second, the regional counselor must make quarterly contact with each host family and au pair. Records must be kept of these contacts.

Third, local and regional counselors are obligated to report unusual or serious incidents involving the au pair and/or the host family.

Fourth, sponsors must report to the DOS any incidents involving a crime involving moral turpitude (CIMT) or a crime of violence.

Under 22 C.F.R. 62.31(m), sponsors are required to submit an annual report in accord with 22 C.F.R. 62.17. Additionally, 22 C.F.R. 62.31(m)(1)-(6) requires sponsors to submit to the DOS the following (paraphrased):

1. A summation of the results of an annual survey of all host family and au pair participants in the exchange program regarding their satisfaction with the program and their appraisal of its strengths and weaknesses;
2. A summation of all complaints regarding host family or au pair participation, specifying the nature of the complaint, the resolution of the complaint, and whether there are outstanding complaints;
3. A summation of all situations which resulted in the placement of an au pair participant with more than one host family;
4. A report certified by a public accountant in a format designated by the DOS attesting to the sponsor's compliance with all procedures and reporting requirements;
5. A report detailing the name of each au pair, his or her host family placement, location, and the names of the applicable local and regional representatives; and
6. A complete set of all promotional materials, brochures, or pamphlets distributed to either the host family or the au pairs.

Sanctions

Sponsors may face sanctions in accord with the general rules for sanctioning exchange program sponsors found in 22 C.F.R. 62.50. In addition to the general sanction provisions, the DOS may revoke certification of an exchange program upon documented evidence showing that the sponsor failed to comply with the au pair placement requirements, the requirements for each individual au pair, or failed to enforce each family's compliance with the stipend and work requirements.

Extension of Au Pair Program

Extensions for au pairs may be granted beyond the initial 12-month program. Determinations of whether to grant an extension are solely within the discretion of the DOS. An au pair's participation may be extended for six, nine, or 12 months. An extension request must be made at least 30 days prior to the expiration of the au pair's participation in the Au Pair or EduCare Program. Requests for extensions are submitted electronically in the Department of Homeland Security's (DHS's) Student and Exchange Visitor System (SEVIS). Supporting documentation must be submitted to the DHS on the sponsor's organizational letterhead. Evidence must include the following in accord with 22 C.F.R. 62.31(o)(1)-(3):

The au pair's name;
The au pair's SEVIS identification number;
The au pair's date of birth;
The length of extension being requested (six, nine, or 12 months);
Verification that the au pair completed the educational requirements of the original program; and
Payment of the required non-refundable fee via pay.gov.

9 FAM 402.5-6(E)(2) states regarding the age requirement that the age for an au pair seeking an extension is “not a barrier,” provided that he or she was 18-26 years old at the time of the initial start date. This means that a 27 year old au pair could qualify for an extension provided that he or she was within the age limit when initially starting the program. However, such an applicant would not eligible for repeat participation.

Repeat Participation

Under 22 C.F.R. 62.31(o), an au pair who enters the United States and successfully completes his or her program will be eligible to participate again in the Au Pair or EduCare Program, provided that he or she resided outside of the United States for at least two years following the completion of his or her initial Au Pair Program. 9 FAM 402.5(E)(2) makes clear that the rules for qualifying are otherwise the same for a repeat participant as for an initial participant.

Not Subject to Section 212(e) of the Immigration and Nationality Act

9 FAM 402.5-6(L)(1)(b) makes clear that Au Pair Program participants are not subject to the home residency requirement in section 212(e) of the Immigration and Nationality Act (INA). However, as we noted, a program participant must reside abroad for two years in order to subsequently participate in the Au Pair Program.

Dependents

9 FAM 402.5-6(D)(4) states that participants in the Au Pair Program are not expected to be accompanied by dependents. Accordingly, if a consular officer receives a J2 derivative visa application associated with a J1 au pair, the officer must seek further guidance.

Au Pair Programs Do Not Qualify as Cultural Exchange Programs for Purposes of Q Nonimmigrant Category

On June 10, 1991, Edward J. Lynch of the then Immigration and Naturalization Service (INS) issued a General Counsel opinion titled “Legal Opinion on Q nonimmigrant visas and au pairs” (see Genco Op. 91-47 (INS), 1991 WL 1185158).

In the opinion, the INS took the position that au pair programs do not qualify as international cultural exchange programs for purposes of the Q nonimmigrant visa category found in section 101(a)(15)(Q) [see article]. The Genco Opinion notes that while cultural exchange programs foster the “sharing of the history, culture, and traditions” of the home country of the participant, the au pair programs “are essentially child care work programs.” It concluded by describing au pair programs are “temporary worker programs” rather than “cultural exchange programs.”

Conclusion

The au pair program allows foreign nationals to experience living with a family in the United States while going to school and engaging in part-time child care work. This may be an ideal option for some foreign nationals in lieu of similar immigration statuses and programs. Sponsors and au pair participants may consult with an experienced immigration attorney for guidance. Foreign nationals who are interested in studying or working in the United States are well-advised to consult with an experienced immigration attorney in order to examine all of the options that may be available.

Tags: 
J visa