[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Rules and Regulations]
[Pages 8547-8553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3597]



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UNITED STATES INFORMATION AGENCY

22 CFR Part 514

[Rulemaking No. 110]


Exchange Visitor Program

AGENCY: United States Information Agency.

ACTION: Final rule.

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SUMMARY: The Agency hereby adopts as final with modifications the 
interim rule governing its oversight and administration of au pair 
programs. Au pair programs permit foreign nationals to enter the United 
States for a period of one year for the purpose of residing with an 
American host family while participating directly in the home life of 
the family and providing limited child care services. The foreign 
national also attends a United States accredited post-secondary 
educational institution. These rules are promulgated pursuant to Public 
Law 103-415 which authorizes the continued operation, until September 
30, 1995, of au pair programs currently designated by the Agency.

DATES: Effective date: These rules are effective February 15, 1995.
    Applicability dates: With the exceptions of Sec. 514.31(j) (1) and 
(4), and Sec. 514.31(k), these rules apply to all au pair placements 
and operations as of February 15, 1995. The provisions set forth at 
Sec. 514.31(j) (1) and (4) and Sec. 514.31(k) shall apply only to au 
pair participants placed after date of publication.
    Compliance date: Sponsor implementation of the provisions set forth 
at Sec. 514.31(g) (1) and (2) will not be expected before March 31, 
1995.

FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information 
Agency, 301 4th Street, SW., Washington, DC 20547; Telephone, (202) 
619-6829.

SUPPLEMENTARY INFORMATION: First begun pursuant to the provisions of 
the United States Information and Educational Exchange Act of 1948 
(``Smith-Mundt''), and subsequently incorporated into and broadened 
under the Fulbright-Hays Act, educational and cultural exchange 
activities have, over the past forty years, exposed millions of foreign 
nationals to the United States, its peoples, cultures, skills, business 
techniques, educational institutions, and way of life. The Fulbright-
Hays Act mandates reciprocal exchange and Americans traveling abroad 
have, in similar fashion, developed an enhanced awareness of foreign 
people, their cultures and societies. Thus, Fulbright-Hays programs 
further one of the Agency's primary missions: increasing mutual 
understanding between Americans and others through people-to-people 
contact. Originally conducted by the Department of State, oversight of 
exchange activities, occurring under the umbrella of the Exchange 
Visitor Program, has been the responsibility of the Agency since 1978.
    The Fulbright-Hays Act sets forth certain parameters which all 
exchange activities must meet. With an eye towards ensuring that these 
parameters were being met and acting in response to a Congressional 
request, the General Accounting Office (``GAO'') investigated Agency 
oversight and administration of the Exchange Visitor Program and its 
attendant utilization of the J visa. In its report to Congress, dated 
February 5, 1990 and entitled ``Inappropriate Uses [[Page 8548]] of 
Educational and Cultural Exchange Visas,'' the GAO determined that 
certain Exchange Visitor Program activities appeared to be inconsistent 
with the statutory grant of authority and its underlying legislative 
intent. GAO summarized its findings, stating:

    ``Most J visa activities appear to conform to the intent of the 
1961 act. However, GAO believes that certain activities and programs 
in the trainee and international visitor categories, including the 
summer student/travel work, international camp counselor, and au 
pair (Child care) programs, are inconsistent with the legislative 
intent. GAO identified instances of participants working as waiters, 
cooks, child care providers, amusement and leisure park workers, and 
summer camp counselors. Authorizing J visas for participants and 
activities that are not clearly for educational and cultural 
purposes as specified in the act dilute the integrity of the J visa 
and obscures the distinction between the J visa and other visas 
granted for work purposes.''

    The concerns raised in the GAO report had troubled USIA for several 
years, especially the au pair program. Objections to the operation of 
au pair programs under the Exchange Visitor Program and the use of the 
J visa were also raised by the Department of Labor, the Immigration and 
Naturalization Service, and, most importantly, USIA's congressional 
committees of jurisdiction.
    In June of 1993, USIA was approached by the au pair sponsors 
conducting these programs to examine whether the Agency's past 
objections to the continuation of these programs under the Exchange 
Visitor Program could be resolved. The au pair sponsors were advised 
that the Agency saw merit in the programs but had concluded that it 
lacked statutory authority to conduct the programs as then configured. 
The Agency's principal objection to the program was its lack of a bona 
fide educational component sufficient to meet the statutory 
requirements of the Fulbright-Hays Act. A secondary, but equally 
compelling, objection was the program's failure to comply with the Fair 
Labor Standards Act and its requirements governing the payment of 
minimum wage.
    The Agency and the au pair sponsors began earnest discussions 
involving how best to regularize the au pair program in order for it to 
find a permanent home at USIA. During the course of these discussions, 
several tragic incidents involving au pair placements occurred and were 
widely reported in the press. Specifically, the deaths of two infants 
while in the care of au pairs and allegations of child molestation and 
child pornography allegedly involving au pairs brought about 
Congressional and public scrutiny of these programs. This scrutiny, in 
turn, resulted in Congressional action which authorized and directed 
the Agency to promulgate regulations governing au pair placements.
    Pursuant to this clear directive, the Agency published, on December 
14, 1994, interim final regulations governing the au pair program that 
were both consistent with the provisions of the Fulbright-Hays Act and 
which also provided safeguards for au pair participants and the 
American host families with whom they are placed. Given the wide 
popularity of these programs--and the criticisms of them--the Agency 
met with, solicited, and incorporated the views of the au pair 
organizations, interested members of the public and the views of those 
congressional offices possessing jurisdiction over educational and 
cultural exchange programs.
    The Agency's Federal Register publication of this interim rule with 
request for public comment generated over 3,000 responses from American 
families during the thirty day public comment period. A considerable 
number of the comments received had a remarkably familiar style and 
theme, and focused primarily or exclusively on two issues: the rise in 
weekly wage or stipend paid to au pairs and the requirement that au 
pairs taking care of children under the age of two be at least 21 years 
of age. Additionally, however, the Agency received a significant number 
of personalized and thoughtful comments and responses, many which were 
highly persuasive. A majority of the commentators, including a large 
number who objected to certain aspects of the interim final rules, 
praised the Agency for efforts to improve screening, training, and/or 
other aspects of the au pair program. The letters also highlighted 
that, despite the problems which have been associated with this 
program, many families develop excellent relations with their au pairs 
and make considerable efforts to advance the cultural and educational 
exchange aspects of the program.
    Many letters lamented that other forms of child care were 
unaffordable. Some complained about the quality alternative child care. 
While the USIA is pleased that the au pair program apparently provides 
considerable direct benefit to many American families on the important 
matter of affordable child care, the Agency cannot lose sight of the 
fact that it has legal authority to operate the au pair program only if 
it is primarily a cultural and educational exchange program which 
incidentally provides child care. If the program becomes primarily a 
child care program, no matter how valuable, it can be legally 
maintained as a federal program only if it is transferred to another 
agency.
    Although a distinct small minority, some letters criticized the 
Agency for virtually any effort to regulate the program as undue 
interference into family activities. While the Agency has made every 
effort to ensure that the regulations are as unburdensome as possible, 
it is important to note that certain regulations are necessary before 
the Agency is legally permitted to operate this program. Additionally, 
none of the regulations will affect individuals involuntarily. The 
regulations apply only to families who voluntarily and deliberately 
choose to participate in the au pair program.
    In light of the comments it has received, the Agency has determined 
that the interim regulations published December 14, 1994 should be 
amended as follows.

Educational Component

    As discussed above, the Agency's statutory authority to facilitate 
au pair activities has been the subject of debate for the past eight 
years. To achieve compliance with applicable federal law, taking into 
account the 1990 GAO opinion, the interim regulations required that au 
pair participants pursue six semester hours (or its equivalent) of 
academic course work at an accredited post-secondary institution. The 
Agency concluded that this requirement is the minimum programmatic 
component necessary to comply with the provisions of the Fulbright-Hays 
Act. Without this requirement the Agency had determined that it would 
not have statutory authority to conduct this activity.
    Some responses criticized the Agency for focusing excessively on 
traditional forms of educational activities to meet the educational 
exchange requirement. These critics claimed the Agency failed to 
appreciate the degree and caliber of cultural exchange that results 
from daily contact between host families and au pairs. Contrary to 
these assertions, the Agency believes it fully appreciates the value of 
the experiences identified by these commentators. The Agency recognizes 
that the family context provides a unique opportunity for the host 
family and au pair to learn about each other's cultures and values. 
Additionally, one of the clear benefits of the au pair program is that 
it provides many young foreign nationals who otherwise would not have 
the opportunity to participate in an exchange program a chance to do 
so.
    This recognition does not alleviate the Agency's responsibility to 
conduct the [[Page 8549]] program in accordance with federal law, 
however. The Agency does agree it should not impose unnecessary 
rigidity into the requirement and adhered to this principle in drafting 
the interim regulations. Accordingly, the Agency does not amend the 
regulatory provisions set forth at 22 CFR 514.31(k). Moreover, for 
clarification purposes, it is not necessary that the course work be 
taken for credit so that audit of such courses is permissible.

Selection, Training and Screening

    The au pair program has been governed for over eight years by 
voluntary guidelines issued in 1986. Because of Congressional 
enactments in 1988 and 1990, the Agency had been essentially barred 
from modifying or enforcing the guidelines or otherwise regulating and 
monitoring the au pair organizations. Unfortunately, these guidelines, 
promulgated for two au pair organizations under a pilot program 
overseeing 300 au pairs annually, was deficient for a program that had 
grown to eight au pair organizations and 10,000 au pairs annually. By 
the summer of 1994, a number of high profile incidents, buttressed by a 
series of investigative reports, strongly suggested that the lack of 
oversight may in some instances be jeopardizing the safety of host 
family children. Evidence also was presented that some au pairs had 
been mistreated by host family members. The Agency was equally 
disturbed by reports suggesting the program had been portrayed to host 
families as a child care program but to young potential au pairs as a 
chance to see America. Such a disparity in expectations laid a poor 
foundation for either a good exchange experience or for quality child 
care. Faced with this history, and under Congressional mandate, the 
Agency developed regulations which attempted to provide reasonable 
confidence that au pairs assigned to host families had the skills, 
experiences and character to meet host families' reasonable 
expectations.
    One of the two components of the interim regulations drawing the 
most comments involved the age requirement for au pairs caring for 
infant children. The Agency had specified at 22 CFR 514.31(e)(3) that 
an au pair providing such care for a child under the age of two must be 
at least twenty-one years of age. The reason for this requirement was 
to attempt to ensure that au pairs entrusted with infant children had 
some degree of maturity and experience. In imposing this requirement 
the Agency recognized that any age limitation was subjective and 
inexact; nevertheless, the Agency had considered the requirement 
reasonable given all surrounding circumstances.
    Many who commented provided persuasive accounts, examples, and 
illustrations supporting their beliefs that a 21 year old rule was 
unnecessary, especially in light of the Agency's six months of prior 
child care experience requirement. These stories helped convince the 
Agency that the correlation between age and maturity was marginal at 
best and, as a result, the Agency is dropping the twenty-one age 
requirement.
    Another modification is set forth at 22 CFR 514.31(e) (1)-(3). Many 
comments were received which questioned the utility of requiring a 
parent to remain in the home for the first week following the au pair's 
arrival. Many suggested modifications but agreed that some form of 
transition was desirable; others suggested the transition period should 
be left entirely to the discretion of the host family.
    The Agency's reason for imposing such a requirement was the need to 
ensure that the au pair received the benefit of an adequate transition 
period and was comfortable with his or her new duties, new home, new 
community, and new country. The Agency recognized that a vast majority 
of host families would never leave their infants and other children 
with an au pair without an adequate adjustment period, but concluded 
that requiring a reasonable transition period was essential to the 
welfare of both the au pair and the children, especially infants.
    In response to the comments received, the Agency is amending 22 CFR 
514.31(e)(1) to allow either a parent or other responsible adult to 
assist in this transition period and also is reducing the length of 
such transition from one week to three days duration. The Agency has 
been informed that in many instances this three day period will 
encompass the weekend. This increased flexibility addresses the 
concerns raised by most of these comments but still provides adequate 
assurances of a smooth transition for the au pair. The Agency rejects 
those comments suggesting the transition period should be left entirely 
to the discretion of the host family based upon the Agency's experience 
in these matters which indicates that a prescribed transition period is 
necessary, even if it is a short one.
    The Agency also is amending the requirement set forth at 22 CFR 
514.31(e)(3) to provide for greater flexibility. Originally, the Agency 
had required that au pairs placed with families having children under 
the age of two must have at least six months documented infant child 
care experience. In response to comments suggesting that ``documented'' 
was too rigid, confusing or otherwise counterproductive, the Agency is 
amending this provision by substituting the word ``prior'' for 
``documented.''
    In response to documented failures over past eight years to 
adequately screen potential au pair participants, the Agency set forth 
at 22 CFR 514.31(d) specific criteria governing au pair selection. 
Based upon comments received, the Agency is amending 22 CFR 
514.31(d)(6) by requiring a personality profile rather than a 
psychological profile for potential au pair participants. This 
amendment is adopted based upon representations made to the Agency that 
psychological testing would be unduly burdensome, costly and would be 
ineffective. Au pair sponsors suggested the substitution of a 
``personality'' profile which they assert would in fact provide a 
screening mechanisms sufficient to ensure the au pair applicant's 
suitability for child care services. Also set forth in this paragraph 
is the requirement that au pair applicants undergo a criminal record 
check. Au pair sponsors and the Agency's posts overseas confirm that a 
criminal record check as such term is commonly understood in the United 
States is not necessarily available in all countries. For those 
countries where such records are not readily available, the Agency will 
accept the recognized equivalent of a criminal record check for that 
country.
    Directly related to the screening of au pair participants is 
experience and training. A need for some level of uniform training for 
au pair participants was recognized and supported by the public 
comments received by the Agency. However, the length of this training 
was subject to debate. At 22 CFR 514.31(g)(1) the Agency set forth a 
requirement that au pair participants receive not less than 16 hours of 
child safety instruction. Based upon comments received from au pair 
sponsors and the American Red Cross, the Agency is amending this 
requirement by reducing the number of hours of such instruction from 16 
to 8. The regulation is also amended to permit such training to be 
given prior to placement with the host family. This amendment will 
permit au pair sponsors to provide child safety training in the au 
pair's home country if they choose to do so.
    Finally, for the purpose of clarity, the Agency has determined that 
amendments to 22 CFR 514.31(h) are needed. This regulation sets forth 
requirements governing host family [[Page 8550]] selection for 
participation in the au pair program. Given the educational and 
cultural exchange overlay of this program, criteria for program 
participation is necessary. As published, the interim rule required 
that all family members resident in the home be fluent in spoken 
English, be personally interviewed, and have successfully passed a 
background investigation. The Agency is amending this regulation by 
substituting ``host parents'' for ``all family members'' based upon 
comments received which convinced the Agency that the change is needed 
to avoid confusion and unintended senseless results.

Placement and Orientation

    The Agency has reviewed certain requirements governing the terms 
and conditions of an au pair placement and has determined that greater 
flexibility is both possible and desirable. At 22 CFR 514.31(e)(4) the 
Agency amends the interim rule language in order to permit the host 
family and au pair the latitude of establishing flexible work hours. As 
amended, this regulation will require only that the au pair and host 
family have signed a written agreement that outlines the au pair's 
obligation to provide not more than 45 hours of child care services per 
week.
    A small, but vocal, minority expressed strong disagreement with the 
interim regulations' nine hour ceiling on an au pair's work day. Many 
of these commentators apparently failed to realize that the nine hours 
per day limit had been in effect since 1986 and was not new. 
Nevertheless, upon reconsidering this provision, the Agency has 
concluded that the 45 hour week limit, if aggressively enforced, in 
conjunction with other oversight changes, makes the nine hours per day 
cap unnecessary. Thus, the Agency amends 22 CFR 514.31(j)(2) by 
deleting the requirement that au pairs provide not more than nine hours 
of child care services per day. The Agency adopts instead language that 
will permit the au pair to provide a ``reasonable'' number of hours per 
day. The Agency does not define what is reasonable, leaving this 
determination to the host family and au pair in the first instance, 
working with the sponsoring au pair organization as necessary. Given 
the monthly contact by organizational representatives, the Agency is of 
the belief that the documented abuses that prompted the limitation of 
hours will be prevented. As a result of striking the nine hour per day 
limit, the Agency believes the program will be opened to potential host 
families previously unable to participate.
    Many comments objected to the requirement that host families and au 
pairs attend quarterly conferences or seminars devoted to cross 
cultural or child development issues. Some comments criticized the 
number as excessive, others disagreed with the nature of the events, 
and still others considered any such events as an intrusive nuisance. 
The gatherings suggested by the Agency have been a traditional hallmark 
of educational and cultural exchange programs, and the Agency does not 
agree with the characterization that they are an intrusive nuisance or 
otherwise inappropriate for a cultural and educational exchange 
program. However, based on the comments, the Agency agrees to amend 22 
CFR 514.31(i)(3) to require attendance at one family day event 
sponsored by the au pair organization. Thus, not only are the number of 
events reduced, but the Agency is making clear it did not intend to 
prescribe a narrow agenda to the activity.

Au Pair Employment Status

    Much of the criticism of the au pair program is directly related to 
the work component that is an integral part of the program. Because of 
this, domestic nanny services, and others, have long and loudly 
objected to these programs. Critics contend that since 45 hours of work 
per week exceeds the traditional 40 hour American work week, it leaves 
the au pair insufficient time to either meet the educational exchange 
requirement or truly pursue a cultural experience. They assert that the 
program displaces American workers and amounts to no more than the 
import of cheap foreign labor in the guise of an educational and 
cultural exchange program. While the Agency does not agree with this 
characterization, it may not ignore these claims. Accordingly, the 
Agency has been obligated to examine the question of whether au pairs 
are employees subject to the provisions of the Fair Labor Standards 
Act. The Agency has also sought the views and guidance of the 
Department of Labor on this matter. The Department of Labor has 
specifically advised the Agency that an employment relationship is 
established. Because the Department of Labor is the Federal agency 
entrusted with regulating labor laws, including the definition of 
employer and employee and determining when an employment relationship 
is established, it is appropriate for the Agency to defer to Department 
of Labor in this area. Chevron, U.S.A. versus NRDC, 467 U.S. 837 
(1984). To assist the public in their understanding of this matter a 
short analysis is set forth.
    To fall within the purview of the Fair Labor Standards Act, 29 
U.S.C.S. 202 et seq, an individual must meet the threshold requirement 
of ``employee'' status. The Act, at 29 U.S.C.S. 203(e)(1) and (g), 
defines ``employee'' as an individual employed by an employer and 
``employ'' as to suffer or permit to work. Three United States Supreme 
Court decisions provide the controlling authority for the determination 
of employee status.
    In seeking to answer directly the question of who is an employee, 
the Court in Bartels versus Birmingham, 332 U.S. 126 (1947) at page 130 
pronounced that ``in the application of social legislation employees 
are those who as a matter of economic reality are dependent upon the 
business to which they render service.'' This concept of ``economic 
reality'' was first developed in Rutherford Food Corp. versus McComb, 
331 U.S. 722 (1947) which has, along with Bartels, been controlling 
authority for almost fifty years.
    The decision in Goldberg versus Whitaker House Corp., Inc., 366 
U.S. 28 (1961) dictates that determination of an employee relationship 
requires review of the circumstances of the whole activity. Pursuant to 
this decision, pervasive control exercised by the employer over the 
work performed is indicative of employee status. Application of these 
judicially established criteria to the au pair and to his or her host 
``family'' clearly reveals an employment relationship.
    The most obvious indication of employment is the inherent financial 
basis upon which the relationship is built. The au pair provides child 
care services and currently receives one hundred dollars per week room 
and board. The au pair is dependent upon her host ``family'' for her 
subsistence. This economic dependence is the measure of ``economic 
reality'' set forth in the Rutherford and Bartels decisions, supra. The 
Agency believes it to be unlikely that an au pair is going to uproot 
his or herself from his or her home country, travel to the United 
States, and provide forty-five hours of child care per week for 
someone's children without compensation. The au pair provides a service 
and expects and receives payment therefore. Designation of the wage 
paid as ``pocket money'' is immaterial given that the consideration for 
the receipt of the ``pocket money'' is the child care services of the 
au pair. Pursuant to Rutherford and Bartels, an au pair is an employee.
    A second criterion routinely applied to determine employee status 
is that of [[Page 8551]] employer control over the work performed. As 
explained in the Goldberg decision, supra, pervasive control exercised 
by the employer over the work performed is indicative of an employment 
relationship. This concept of control stems from the English common law 
theories of master and servant.
    As applied today, the concept of control involves the employer 
setting the terms and conditions of the employment, i.e., hours of 
work, methods of performing the work, break times, uniforms, and the 
designation of actual duties. The question of control generally arises 
in those situations in which an employer seeks to designate an employee 
as an independent contractor and thereby escapes the obligations of 
various labor statutes such as the Fair Labor Standards Act. 
Designation of the au pair as a ``family'' member would be analogous to 
this scenario, when made to avoid the employer/employee relationship.
    An au pair's relationship to his or her ``family'' meets the 
pervasive control theory of Goldberg. The ``family'' determines what 
hours of the day the au pair will work. The ``family'' determines what 
additional duties may be necessary for the au pair to perform on a 
daily basis. The ``family'' dictates what the child, under the care of 
the au pair, will eat, when he will play, and when he will nap. 
Pursuant to Goldberg, an au pair is an employee.

Au Pair Wages

    The weekly compensation paid to au pairs generated voluminous 
comment. All of the comments received objected to an increase in the 
weekly wage or stipend from the current $100 to $155 per week. Many 
agreed that a substantial increase was appropriate, given that au pairs 
have been receiving $100 per week since the inception of the program in 
1986. $120-$130 per week was the range mentioned most frequently.
    Some of the commentators who criticized the increase to $155 per 
week reprimanded the Agency for promoting a 55 percent increase, 
asserting that the decision reflected an insensitivity to the needs of 
American families. The Agency believes these critics misunderstood the 
interim regulations and the purpose for the formula proposed in those 
regulations.
    As explained in the interim final rulemaking published December 14, 
1994, the $155 amount was established by examining Department of Labor 
regulations governing the payment of minimum wage to live-in domestic 
employees. The $155 amount reflected minimum wage less a fixed credit 
of $36 permitted under current Department of Labor regulations for room 
and board. This regulation, set forth at 29 CFR 552.100 also provides 
for an alternative calculation of the credit for room and board based 
upon actual cost.
    The Agency noted in the interim rule that the $36 credit was based 
upon a regulation published in 1979 and that the Agency was of the 
opinion that the credit should be substantially higher. The Department 
of Labor is of the same opinion as evidenced by its proposed rule 
published in the Federal Register on December 30, 1993 at page 69312. 
In this proposed rule the Department of Labor sought to amend 29 CFR 
552.100 to reflect the increase in the cost of room and board by 
determining the permissible credit as a percentage of the hourly 
minimum wage. This proposed rule has not been finalized.
    In an attempt to document costs, certain au pair organizations 
conducted a nationwide survey of their host families to determine the 
average cost of room and board provided to au pairs. While not 
endorsing the methodology used in this survey, the Agency is 
comfortable with the results presented. This survey suggests that the 
average cost for room and board is approximately $65 per week. This 
survey provides some measure of objective evidence that the allowance 
for room and board is substantially higher than the 1979 allowance of 
$36 per week.
    As stated, 29 CFR 552.100 provides two methods for recognizing the 
cost of room and board provided live-in domestic employees. The first 
method, which allows a fixed $36 credit is outdated but still legally 
applicable. The second method, which allows for a deduction against the 
minimum wage based on the actual cost of room and board.
    The public comments received have convinced the Agency that a 
credit for room and board based upon actual costs is preferred by the 
majority of host families. However, the programmatic need for a uniform 
wage remains. Thus, in order to balance the preference of host families 
against the programmatic need for a uniform wage, the Agency will rely 
on the Department of Labor's methodology as set forth in its proposed 
rule of December 30, 1993. To this end, and until this Department of 
Labor regulation is adopted as final, the Agency will permit a credit 
for room and board based upon actual cost but not to exceed $76 per 
week. Upon finalization of this Department of Labor regulation, the 
Agency will adopt the fixed credit method and thereby alleviate the 
family's obligation to maintain records.
    The Agency concludes this approach will allow the weekly wage or 
stipend to automatically adjust, using a formula based on the minimum 
wage and room and board costs routinely calculated by the Department of 
Labor. The Agency believes this method is fair to host families and au 
pairs, and will ensure adherence to federal law. Moreover, once the 
Department of Labor regulations are finalized, this approach will 
eliminate the need for host families to keep individualized records. 
Additionally, it will not compel the federal government to expend 
scarce resources to regulate or otherwise oversee this portion of the 
program.
    Based on the comments received and the above discussions, the 
Agency is of the opinion that a weekly stipend or wage of not less than 
$115 is consistent with Fair Labor Standards Act requirements governing 
payment of minimum wage and is appropriate for the present time.

Other Statutory Considerations

    Finally, a question has arisen regarding the Agency's statutory 
authority to impose a performance bond. The program guidelines 
governing au pair placements for the past eight years have required 
that the au pair participants place with the au pair sponsor a bond in 
the amount of five hundred dollars. This bond was forfeited if the au 
pair participant failed to successfully complete the agreed upon one 
year program or failed to return to their home country.
    In discussions with the Department of Labor regarding payment of 
minimum wage, the Agency was advised by the Department that this bond 
requirement was a minimum wage violation. For the reasons discussed 
above, under the Chevron doctrine, deference to Department of Labor's 
interpretation is appropriate. Additionally the Agency's subsequent 
review of this matter has led it to conclude that it is without 
statutory authority to impose a bond. Pursuant to provisions of the 
Immigration and Naturalization Act set forth at 8 U.S.C. 1184(a) the 
Attorney General is vested with authority governing the admission of 
aliens into the United States and the giving of a bond to insure the 
aliens maintenance of status and departure from the United States. The 
Director of USIA is without such authority and the regulatory provision 
set forth at 22 CFR 514.31(1) requiring a performance bond is therefore 
deleted.

List of Subjects in 22 CFR Part 514

    Cultural exchange programs.

    [[Page 8552]] Dated: February 8, 1995.
Les Jin,
General Counsel.

    Accordingly, the interim rule amending 22 CFR part 514 which was 
published at 59 FR 64296 on December 14, 1994, is adopted as a final 
rule with the following change:

PART 514--EXCHANGE VISITOR PROGRAM

    1. The authority citation for part 514 continues to read as 
follows:

    Authority:  8 U.S.C. 1101(a)(15)(J), 1182, 1258; 22 U.S.C. 1431-
1442, 2451-2460; Reorganization Plan No. 2 of 1977, 42 FR 62461, 3 
CFR, 1977 Comp. p. 200; E.O. 12048 43 FR 13361, 3 CFR, 1978 Comp. p. 
168; USIA Delegation Order No. 85-5 (50 FR 27393).

    2. Part 514 is amended by revising Sec. 514.31 to read as follows:


Sec. 514.31  Au pairs.

    (a) Introduction. These regulations govern Agency-designated 
exchange visitor programs under which foreign nationals are afforded 
the opportunity to live with an American host family and participate 
directly in the home life of the host family while providing limited 
child care services and attending a U.S. post-secondary educational 
institution.
    (b) Program designation. The Agency may, in its sole discretion, 
designate bona fide programs satisfying the objectives set forth in 
paragraph (a) of this section. Such designation shall be for a period 
of two years and may be revoked by the Agency for good cause.
    (c) Program eligibility. Sponsors designated by the Agency to 
conduct au pair exchange program shall:
    (1) Limit the participation of foreign nationals in such programs 
to not more than one year;
    (2) Limit the number of hours an au pair participant is obligated 
to provide child care services to not more than 45 hours per week;
    (3) Require that the au pair participant enrolls in a U.S. 
institution of higher education for not less than six semester hours of 
academic credit or its equivalent;
    (4) Require that all officers, employees, agents, and volunteers 
acting on their behalf are adequately trained and supervised;
    (5) Require that the au pair participant is placed with a host 
family within one hour's driving time of the home of the local 
organizational representative authorized to act on the sponsor's behalf 
in both routine and emergency matters arising from the au pair's 
participation in their exchange program;
    (6) Require that each local organizational representative maintain 
a schedule of personal monthly contact (or more frequently as required) 
with each au pair and host family for which he or she is responsible;
    (7) Require that local organizational representatives not devoting 
their full time and attention to their program obligations are 
responsible for no more than fifteen au pairs and host families; and
    (8) Require that each local organizational representative is 
provided adequate support services by a regional organizational 
representative.
    (d) Au pair selection. In addition to satisfying the requirements 
of Sec. 514.10(a), sponsors shall ensure that all participants in a 
designated au pair exchange program:
    (1) Are between the ages of 18 and 26;
    (2) Are a secondary school graduate, or equivalent;
    (3) Are proficient in spoken English;
    (4) Are capable of fully participating in the program as evidenced 
by the satisfactory completion of a physical;
    (5) Have been personally interviewed, in English, by an 
organizational representative; and
    (6) Have successfully passed a background investigation that 
includes verification of school, three, non-family related personal and 
employment references, a personality profile and a criminal record 
check or its recognized equivalent.
    (e) Au pair placement. Sponsors shall secure, prior to the au 
pair's departure from the home country, a host family placement for 
each participant. Sponsors shall not:
    (1) Place an au pair with a family unless the family has 
specifically agreed that a parent or other responsible adult will 
remain in the home for the first three days following the au pair's 
arrival;
    (2) Place an au pair with a family having a child aged less than 
three months unless a parent or other responsible adult is present in 
the home;
    (3) Place an au pair with a host family having children under the 
age of two, unless the au pair has at least six months of prior infant 
child care experience;
    (4) Place the au pair with a family unless a written agreement 
between the au pair and host family outlining the au pair's obligation 
to provide not more than 45 hours of child care services per week has 
been signed by both; and
    (5) Place the au pair with a family who cannot provide the au pair 
with a suitable private bedroom.
    (f) Au pair orientation. In addition to the orientation 
requirements set forth herein at Sec. 514.10, all sponsors shall 
provide au pairs, prior to their departure from the home country, with 
the following information:
    (1) A copy of all operating procedures, rules, and regulations, 
including a grievance process, which govern the au pair's participation 
in the exchange program;
    (2) A detailed profile of the family and community in which the au 
pair will be placed;
    (3) A detailed profile of the educational institutions in the 
community where the au pair will be placed, including the financial 
cost of attendance at these institutions; and
    (4) A detailed summary of travel arrangements.
    (g) Au pair training. Sponsors shall provide the au pair 
participant with child development and child safety instruction, as 
follows:
    (1) Prior to placement with the host family, the au pair 
participant shall receive not less than eight hours of child safety 
instruction; and
    (2) Prior to placement with the American host family, the au pair 
participant shall receive not less than twenty-four hours of child 
development instruction.
    (h) Host family selection. Sponsors shall adequately screen all 
potential host families and at a minimum shall:
    (1) Require that the host parents are U.S. citizens or legal 
permanent residents;
    (2) Require that host parents are fluent in spoken English;
    (3) Require that all adult family members resident in the home have 
been personally interviewed by an organizational representative;
    (4) Require that host parents have successfully passed a background 
investigation including employment and personal references;
    (5) Require that the host family has adequate financial resources 
to undertake hosting obligations; and
    (6) Provide a written detailed summary of the exchange program and 
the parameters of their and the au pair's duties, participation, and 
obligations.
    (i) Host family orientation. In addition to the requirements set 
forth at Sec. 514.10, sponsors shall:
    (1) Inform all host families of the philosophy, rules, and 
regulations governing the sponsor's exchange program;
    (2) Provide all selected host families with a copy of Agency-
promulgated Exchange Visitor Program regulations;
    (3) Advise all selected host families of their obligation to attend 
at least one family day conference to be sponsored by their au pair 
organization during the course of the placement year. Host 
[[Page 8553]] family attendance at such gathering is a condition of 
program participation and failure to attend will be grounds for 
possible termination of their continued or future program 
participation; and
    (4) Require that the organization's local counselor responsible for 
the au pair placement contacts the host family and au pair within 
forty-eight hours of the au pair's arrival and meets, in person, with 
the host family and au pair within two weeks of the au pair's arrival 
at the host family' home.
    (j) Stipend and hours. Sponsors shall require that au pair 
participants:
    (1) Are compensated at a rate of not less than $115.00 per week;
    (2) Do not provide more than a reasonable number of hours of child 
care on any given day;
    (3) Receive a minimum of one and a half days off per week in 
addition to one complete weekend off each month; and
    (4) Receive two weeks of paid vacation.
    (k) Educational component. Sponsors shall require that during the 
period of program participation, all au pair participants are enrolled 
in an accredited post-secondary institution for not less than six hours 
of academic credit or its equivalent. As a condition of program 
participation, host family participants must agree to facilitate the 
enrollment and attendance of the au pair and to pay the cost of such 
academic course work in an amount not to exceed $500.
    (l) Monitoring. Sponsors shall fully monitor all au pair exchanges, 
and at a minimum shall:
    (1) Require monthly personal contact by the local counselor with 
each au pair and host family for which the counselor is responsible. 
Counselors shall maintain a record of this contact;
    (2) Require quarterly contact by the regional counselor with each 
au pair and host family for which the counselor is responsible. 
Counselors shall maintain a record of this contact;
    (3) Require that all local and regional counselors are appraised of 
their obligation to report unusual or serious situations or incidents 
involving either the au pair or host family; and
    (4) Promptly report to the Agency any incidents involving or 
alleging a crime of moral turpitude or violence.
    (m) Reporting requirements. Along with the annual report required 
by regulations set forth at Sec. 514.17, sponsors shall file with the 
Agency the following information:
    (1) A summation of the results of an annual survey of all host 
family and au pair participants regarding satisfaction with the 
program, its strengths and weaknesses;
    (2) A summation of all complaints regarding host family or au pair 
participation in the program, specifying the nature of the complaint, 
its resolution, and whether any unresolved complaints are outstanding;
    (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 by a certified public accountant attesting to the 
sponsor's compliance with the procedures and reporting requirements set 
forth in this subpart;
    (5) A report detailing the name of the au pair, his or her host 
family placement, location, and the names of the local and regional 
organizational representatives; and
    (6) A complete set of all promotional materials, brochures, or 
pamphlets distributed to either host family or au pair participants.
    (n) Sanctions. In addition to the sanctions provisions set forth at 
Sec. 514.50, the Agency may undertake immediate program revocation 
procedures upon documented evidence that a sponsor has failed to:
    (1) Comply with the au pair placement requirements set forth in 
paragraph (e) of this section;
    (2) Satisfy the selection requirements for each individual au pair 
as set forth in paragraph (d) of this section; and
    (3) Enforce and monitor host family's compliance with the stipend 
and hours requirements set forth in paragraph (j) of this section.

[FR Doc. 95-3597 Filed 2-14-95; 8:45 am]
BILLING CODE 8230-01-M