[Federal Register Volume 88, Number 208 (Monday, October 30, 2023)]
[Proposed Rules]
[Pages 74071-74097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23650]


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DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice: 11121]
RIN 1400-AF12


Exchange Visitor Program--Au Pairs

AGENCY: U.S. Department of State.

ACTION: Notice of proposed rulemaking; request for comment.

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SUMMARY: The U.S. Department of State (``Department of State'') 
proposes to amend existing Exchange Visitor Program regulations 
governing the Au pair category to clarify and modernize the au pair 
program, by, among other things, restructuring the child care and 
educational components, replacing the EduCare program with the part-
time option, enhancing au pair and host family orientation 
requirements, formalizing standard operating procedures for rematching 
au pairs with new host families, and proposing new requirements to 
strengthen au pair protections. The Department of State encourages 
public comment on the proposed rule, particularly the restructuring of 
the au pair program and the calculation of the weekly compensation.

DATES: The Department of State will accept public comments on the 
proposed regulation until December 29, 2023.

ADDRESSES: Interested parties may submit comments to the Department of 
State by any of the following methods:
     Visit the Regulations.gov website at: https://www.regulations.gov and search for the docket number DOS-2023-0025.

[[Page 74072]]

     Email: [email protected]. You must include RIN 1400-
AF12 in the subject line of your message.
     All comments should include the commenter's name, the 
organization the commenter represents, if applicable, and the 
commenter's email address. If the Department of State is unable to read 
your comment for any reason, and cannot contact you for clarification, 
the Department of State may not be able to consider your comment. After 
the conclusion of the comment period, the Department of State will 
publish a Final Rule (in which it will address relevant comments) as 
expeditiously as possible.

FOR FURTHER INFORMATION CONTACT: Karen Ward, Director, Office of 
Private Sector Exchange Designation, Bureau of Educational and Cultural 
Affairs, U.S. Department of State, SA-5, 2200 C Street NW, Washington, 
DC 20522-0505. Telephone: 202-733-7852. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: The Mutual Educational and Cultural Exchange 
Act of 1961 (Pub. L. 87-256) (``Fulbright-Hays Act'' or ``Act'') vests 
the Department of State with the authority to administer authorized 
cultural and educational programs. 22 U.S.C. 2451, et. seq.
    Congress enacted the Fulbright-Hays Act in order to ``increase 
mutual understanding between the people of the United States and the 
people of other countries,'' ``strengthen the ties which unite us with 
other nations,'' ``promote international cooperation for educational 
and cultural advancement,'' and ``assist in the development of 
friendly, sympathetic, and peaceful relations between the United States 
and other countries of the world.'' Id. Sec.  2451. Consistent with 
those purposes, the relevant regulations observe that the Exchange 
Visitor Program ``assist[s] the Department of State in furthering the 
foreign policy objectives of the United States.'' 22 CFR 62.1(a).
    Au pairs are foreign nationals who travel to the United States on a 
J-1 visa to live with an American host family, while caring for the 
host families' children, enrolling in educational programs, and 
engaging in a variety of cultural activities. To that end, au pairs are 
``afforded the opportunity to live with an American host family and 
participate directly in the home life of the host family.'' 22 CFR 
62.31(a). The Au pair category of the Exchange Visitor Program is an 
important tool of U.S. public diplomacy that furthers the 
Administration's foreign affairs objectives. The program develops young 
foreign ambassadors who return to their home countries more aware of 
American values, culture, and leadership, and provides reciprocal 
cultural and educational benefits to the American families hosting the 
au pair visitor, especially the young children in the au pair's care.
    The Department of State has carefully crafted a uniform system of 
regulations designed to protect au pairs and their host families while 
maintaining an environment conducive to a comprehensive federal 
educational and cultural exchange program. It is the development of 
mutual understanding and shared cultures that benefits au pairs, their 
host families and communities, and the foreign relations of the United 
States. American host families compensate au pairs and subsidize the 
program's required educational and cultural component, while exposing 
their children to international and intercultural differences and 
similarities.
    The Department of State's public diplomacy objectives are best 
realized if all participants in the Exchange Visitor Program have 
positive cultural immersion experiences. The au pair program is only 
one of two programs that place exchange visitors into private homes, a 
situation that requires recognition of the sensitive relationships that 
may develop in such a merged household, when participants may not 
always have the same expectations. Decades of au pair placements have 
confirmed that regulations governing this category must include 
enhanced monitoring requirements and protections for au pairs to 
safeguard their health, safety, and welfare, as well as their positive 
experiences as exchange visitors and to ensure that the interests of au 
pairs are fully respected. Au pairs specifically participate in a 
unique program that requires living with a host family to foster direct 
participation in their home life while providing child care.
    The Department of State acknowledges concerns by interested third 
parties that there is a significant geographic variation in the cost of 
living across the United States and about whether the federal minimum 
wage rate in some states is sufficient to cover au pair expenses. There 
is also an increase in the number of states and localities where the 
minimum wage exceeds the federal minimum wage. The Department of State 
also understands that collaboration with all stakeholders, including 
organizations that advocate on behalf of domestic workers, advances the 
objective of protecting the health, safety, and welfare of au pairs. Au 
pairs participating in a foreign policy program must be adequately 
compensated and protected from abuse.
    The Department of State underscores the cultural immersion purpose 
of the au pair program, which has always distinguished au pairs from 
domestic childcare workers. At the same time, the Department of State 
wants to ensure au pairs have similar protections as those afforded to 
domestic workers. To this end, the Department of State proposes 
redefining the structure of the au pair program options and their 
associated hours and compensation calculations, including incorporating 
differences in federal, state, and local minimum wage rates so that the 
highest applicable rate within each tier (or the highest applicable 
minimum wage rate, if higher) applies to all au pairs. At the same 
time, the Department of State would preserve other fundamental elements 
of the Au pair category that underpin the success of this cultural 
exchange program as an immersion into American family life.

Program Structure

    In accordance with its exclusive regulatory authority and to 
further the foreign policy and diplomacy goals of the Fulbright-Hays 
Act, the Department of State devised the Au pair category of the 
Exchange Visitor Program to be distinct from domestic childcare 
workers. While the au pair program provides many families with high-
quality childcare, the program specializes in providing an enriching 
cultural experience for the children and for a young person from 
another country. The Department of State (and formerly the U.S. 
Information Agency) has implemented and overseen the Au pair category 
since its inception as a federally regulated program that effectuates a 
variety of foreign affairs objectives, including promoting cultural 
exchange and fostering mutual understanding. It serves as a unique 
diplomatic tool that achieves the Fulbright-Hays Act goals by inviting 
young foreign persons to live and provide childcare with American 
families, learn, and absorb our culture and language, pursue additional 
educational opportunities, and then return to their home countries.
    To further enhance the au pair program, the Department of State is 
proposing to set certain baselines for this type of exchange program 
and limit the number of childcare hours per program as outlined in 
proposed Sec.  62.31(a). Au pairs and host families would choose either 
a ``part-time'' program with childcare hours between 24-31 hours per 
week, or a full-time program of child care hours between

[[Page 74073]]

32-40 hours per week. As further discussed below, the au pair's weekly 
childcare compensation would be based on the maximum hours of the 
chosen option, even if the au pair worked fewer hours. Under this new 
structure, au pairs would not work hours in excess of each option's 
maximum limit, except under very limited exigent circumstances with 
notification by the host family to the sponsor as described below. 
Sponsors must have policies and contingency plans in place for host 
families that need to report exigent circumstances and are responsible 
for ensuring excess childcare hours are infrequent. When part-time au 
pairs work more than 31 hours in a week but not more than 40 hours, 
they would be compensated for those excess hours at the hourly rate of 
the applicable tier identified in proposed paragraph (n)(4)(ii) of the 
regulations. When part-time or full-time au pairs work over 40 hours in 
a week, they would be compensated for those excess hours at the hourly 
rate of the applicable tier identified in proposed paragraph (n)(4)(ii) 
of the regulations, and they must also be paid any overtime premium due 
under applicable federal, state, or local law. In addition, under the 
proposal, au pairs must be paid any other overtime premiums due under 
applicable federal, state, or local law for other hours worked. For 
example, California law currently calculates overtime pay due on a 
daily basis. Proposed paragraph (j)(8) would require in the Host Family 
Agreement a provision that host families that have au pairs provide 
childcare duties for more than the maximum number of hours permitted 
must report this within five calendar days to the sponsor and explain 
the exigent circumstance requiring the additional hours. The Department 
of State proposes in paragraph (m)(7) that frequent reports of the au 
pair providing childcare in excess of the maximum number of hours 
permitted or a failure to report could lead to the host family's 
termination from the au pair program.
    The current EduCare option, under which au pairs are limited to 30 
hours of weekly childcare to allow more time for study, is being 
replaced by the ``part-time'' program, with a weekly childcare range of 
24 to 31 hours. The Department of State believes the name change will 
facilitate distinguishing between the two program options, and that, as 
discussed further below, the modification to the hour limitations will 
ensure a better understanding by host families of the need to ensure 
that au pairs have sufficient time to pursue the educational and 
cultural exchange aspects of the program. The language under paragraph 
(b) has also been updated to mirror other recent category changes and 
remove the sentence, ``Such designation shall be for a period of two 
years and may be revoked by the Department of State for good cause'' as 
this subject is now covered in 22 CFR 62.6(b).\1\
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    \1\ Exchange Visitor Program--General Provisions, 79 FR 60307 
(Oct. 6, 2014).
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    The proposed rule maintains many regulatory provisions that have 
been successful over the years. However, the Department of State 
recognizes that there are many ways to modernize the au pair program, 
ensuring it is consistent with the authorizing legislation's focus on 
the foreign policy objective of advancing mutual understanding, while 
at the same time protecting the health, safety, and welfare of these 
exchange visitors. The proposed rule reflects this balance and 
maintains the program as a world class U.S. public diplomacy initiative 
focused on an educational and cultural mission. Major revisions 
proposed in this proposed rule include requiring sponsors to develop 
standard operating procedures and internal controls; increased au pair 
and host family orientation requirements; a higher standard of vetting 
for au pairs and host families; provisions governing sponsor 
relationships with third parties acting on their behalf; increased 
protections for au pairs; enhanced educational options (including 
virtual classes and volunteerism); additional reporting requirements; 
and finally, the proposed formalization of and expansion of a Host 
Family Agreement between au pairs and host families. None of the 
proposed requirements placed on sponsors in this proposed rule modify 
the ``General obligations of sponsors,'' as enumerated upon in 22 CFR 
62.9. As 22 CFR 62.9(d)(5) states, with regard to both the au pair 
program and the other exchange visitor programs that the Department of 
State oversees, a sponsor must ``not represent that its exchange 
visitor program is endorsed, sponsored or supported by the Department 
of State or the U.S. Government, except for U.S. Government sponsors or 
exchange visitor programs financed directly by the U.S. Government to 
promote international education exchanges.'' Thus, as 22 CFR 62.9(d)(5) 
makes clear, the au pair program and its implementing regulations do 
not create a relationship of agency, contract, or representation 
between the United States government and a program sponsor, and nothing 
in this rulemaking alters the status of that relationship.

Host Family Agreement

    The Department of State is aware that each sponsor implements a 
Host Family Agreement between the host family and the au pair. While 
the Host Family Agreement is not a contract, it reflects the 
understanding between the host family and the au pair regarding the au 
pair's terms of placement and expected day-to-day activities. In order 
to further reinforce program transparency, the Department of State 
proposes to require sponsors to outline placement-specific minimum 
requirements and disclosures in each Host Family Agreement. The 
proposed provision at 22 CFR 62.31(j) requires Host Family Agreements 
to clearly describe all sponsor and third-party fees associated with 
the exchange program, expected childcare duties, hours, compensation, 
room and board and all other deductions from compensation, paid time 
off for vacation and sick leave, the educational allowance, and any 
required training. The Department of State wants to ensure that both au 
pairs and host families establish realistic expectations of the au pair 
experience. Operating from a common point of understanding is key to a 
successful program.
    First and foremost, the Department of State proposes that the Host 
Family Agreement must specifically identify and list duties and tasks 
acceptable to the au pair and the host family, consistent with the 
regulation's guidance on tasks that are appropriate for an au pair. Au 
pairs should not engage in, and the Host Family Agreement must not 
include, inappropriate duties as set out in proposed paragraph 
(j)(2)(ii). All expected and agreed upon duties must be identified 
prior to signing the agreement, though the agreement may be later 
updated. Au pairs are not required to perform any tasks not listed in 
the Host Family Agreement. Any tasks outside the Host Family Agreement 
performed by the au pair must be voluntary and infrequent, but they may 
not include activities under paragraph (j)(2)(ii). Au pairs may add 
clarifying language when signing the initial Host Family Agreement or 
through an amendment to the Host Family Agreement, to identify and add 
appropriate duties not listed in paragraph (j)(2)(i). Any changes to 
the initial or modified Host Family Agreement must be agreed upon in 
writing by the au pair and host family per proposed paragraph (j)(14).
    The Department of State proposes to require that the Host Family 
Agreement

[[Page 74074]]

include a typical weekly schedule which the sponsor has reviewed to 
ensure it complies with regulatory requirements (proposed paragraph 
(j)(3)). Although emergencies arise and there will be occasional 
deviations from the schedule, the creation of a typical weekly schedule 
allows au pairs to better plan their off-duty time (e.g., pursue 
cultural activities or the educational component). As with the duty 
lists, host families or au pairs seeking to modify the weekly schedule 
permanently would be required to submit the proposed change to the 
sponsor for review and approval before seeking written approval from 
the au pair or host family. The Host Family Agreement would also 
specify that child care hours in excess of the maximum hours allowed 
under the au pair's program (31 or 40 hours/week) are subject to a 
separate reporting requirement for host families.
    The Department of State proposes to require sponsors to establish 
standard operating procedures covering amendment to or termination of 
Host Family Agreements and in the event an au pair or host family 
requests a rematch (proposed Sec.  62.31(c)(1)(ii)). The Host Family 
Agreement does not prevent an au pair or host family from requesting a 
rematch or ending their participation in the au pair program.

Program Conditions

    The Department of State also proposes to change the name of the 
current Sec.  62.31(c) ``Program eligibility'' to ``Program 
conditions'' to better capture the functionality of the provisions in 
this paragraph. Over the years, the term ``eligibility'' has become 
associated with baseline qualifications that enable certain entities to 
assume distinct roles in the Exchange Visitor Program, (e.g., entities 
seeking to become sponsors, sponsors seeking to become redesignated, 
families seeking to host exchange visitors, and foreign nationals 
seeking to become exchange visitors). Accordingly, the sponsor 
obligations that are not directly associated with the basic core 
programmatic functions (i.e., screening, selecting, placing, 
monitoring, and promoting mutual understanding), are included under the 
heading ``Program conditions.''
    The Department of State is proposing that a sponsor's local 
coordinator must not have a family or work connection with any of the 
host families in which they have monitoring responsibilities (proposed 
paragraph (c)(2)(ii)). The Department of State is also proposing that a 
local coordinator who is only working part-time (fewer than 32 hours 
per week) must be responsible for placement and monitoring of no more 
than 15 au pairs (proposed paragraph (c)(2)(iii)). Local coordinators 
who work full-time for an au pair sponsor may be responsible for no 
more than 30 au pair placements (proposed paragraph (c)(2)(iv)). This 
will allow the local coordinators to spend more quality time monitoring 
the au pairs.
    The Department of State continues to place a high priority on 
ensuring the health, safety, and welfare of exchange visitors on 
exchange programs in the United States. Although nearly 40 years have 
passed since the inception of the Au pair category, certain situations 
continue to exist that require more focused regulatory attention. The 
time of greatest vulnerability and uncertainty for au pairs occurs 
after sponsors determine that irreconcilable differences exist between 
a host family and the au pair who had been placed in their home. In 
many such instances, it may not be clear if the irreconcilable 
difference were caused by the behaviors/actions of the host family, au 
pair, both, or neither. The Department of State relies on sponsor 
organizations to work with involved parties to reach a resolution. 
Program sponsors have a detailed understanding of each au pair 
placement and are the mediators between the parties. If a sponsor 
cannot reach a resolution acceptable to all parties, the Department of 
State will monitor any incidents or complaints until a resolution is 
reached, ensuring there is no retaliation by any party and allowing au 
pairs to file complaints to any local, state, or federal enforcement 
agency. The rematch of an au pair with a new host family involves many 
competing interests. The original host family is seeking continued 
child care pursuant to a contract with the sponsor. They may have 
already paid the educational stipend and perhaps given their au pair 
two weeks' paid time off. The sponsor may seek to minimize its costs 
when finding new matches for both the host family and the au pair. The 
au pair is seeking a continued cultural and educational experience. The 
host family may not be willing or able to keep the au pair in their 
home until a new host family can be arranged.
    To address the issues surrounding au pair rematching, the 
Department of State is proposing that sponsors develop and implement 
standard operating procedures that address the range of circumstances 
that may evolve when an au pair leaves a host family home. The major 
issues associated with rematching generally can be assigned to one of 
the following categories: (1) where an au pair will live after leaving 
the host family home and who is responsible for expenses incurred 
during this transition period; (2) how to equitably split between the 
old and new host families the cost of the educational stipend and the 
benefits of paid time off for weekends, vacation, and sick leave; (3) 
the process sponsors follow to find new placements for au pairs; and, 
(4) the process and criteria for determining whether an au pair cannot 
be rematched and must end the program early. Each of these situations 
is discussed separately below.
    When a sponsor determines that an au pair is not suited for the 
current placement, the Department of State's first concern is that the 
sponsor's standard operating procedures cover where the au pair will 
live and who will be responsible for living expenses (i.e., food and 
lodging) at no additional cost to the au pair until the au pair is 
placed with a new host family or returns home prior to the original 
program end date (proposed paragraph (c)(1)(iii)). Also, if an au pair 
can only be rematched with a family in a different geographical 
location, the issue of which party is responsible for the cost of 
transportation to the new location must be part of a sponsor's standard 
operating procedures. As proposed in paragraph (c)(1)(viii), sponsors 
must establish standard operating procedures and processes for handling 
issues, complaints, and emergencies during routine monitoring, as well 
as written concerns by au pairs or host families.
    Individuals seeking to become au pairs anticipate positive 
experiences, so it may not occur to them that they could face several 
days or weeks after leaving a host family home when their wages stop, 
but their need for food and/or lodging does not. Sponsors would be 
required to develop plans to cover such situations and inform 
applicants of these plans before accepting them into their programs. Au 
pairs not eligible for a rematch should be assisted immediately in 
returning to their home country.
    The Department of State is proposing a new paragraph (c)(3) on 
vetting foreign third parties, beyond what is required in Sec.  
62.9(f). Proposed paragraph (c)(3)(ii) provides that sponsors would 
annually review and maintain specific documentation for foreign third 
parties (i.e., proof of business license, disclosure of legal actions, 
summary of exchange program experience, marketing materials, and 
financial statements). Sponsors would also implement standard operating 
procedures and internal controls to ensure that foreign entities comply 
with the terms of such agreements.

[[Page 74075]]

Host Family Eligibility

    As with the proposed rule for local coordinators, proposed 
paragraph (h) provides that host family members must not be a relative 
to the au pair and the host family commits not to reside outside of the 
United States and its territories for longer than a cumulative total of 
30 days or at a domestic location within the United States that is more 
than one hour's drive from a local coordinator for longer than a 
cumulative total of 30 days during the au pair's program. Au pairs make 
the commitment to a host family placement in the United States for one 
year and would not be required to reside outside the United States for 
more than 30 days.

Orientations

    The proposed rule distinguishes between the orientation 
requirements prior to departure and post-arrival for au pairs (Sec.  
62.31(f)). There is also a proposed paragraph for host family 
orientations (Sec.  62.31(i)). Proposed Sec.  62.31(f)(1)(i) would 
establish that before au pairs depart their home countries, sponsors 
(or third parties acting on their behalf) must present to the au pairs 
an executed copy of the Host Family Agreement (if they do not already 
have one in their possession). The entities that conduct the pre-
departure orientation must ensure that the agreement is signed and 
initialed by both parties. Au pairs would continue to not be permitted 
to travel to the United States without a fully executed agreement. 
Sponsors would also be required to inform au pairs of the requirement 
that they take with them either a pre-paid return airline ticket or a 
pre-paid voucher equivalent to the cost of a return ticket to ensure 
that they can fund their return trip home at the end of the program 
(proposed paragraph (f)(1)(iii)). As will be discussed infra, sponsors 
that are unable to rematch qualified au pairs would be required to 
refund to the au pair a portion of the cost of the return ticket, based 
on the length of time the au pair participated in the program. This 
section also maintains the requirement that au pairs be apprised of the 
role that the au pair program plays in achieving U.S. foreign policy 
objectives by exposing participants to U.S. values, customs, and norms. 
They also must be advised of the importance of completing the 
educational component of their program.
    Host family orientation is an important part of an au pair 
placement because setting realistic expectations at the outset helps to 
ensure a successful placement. The Department of State proposes to add 
several requirements to this paragraph. First, the proposed rule would 
specify that host family orientations cannot take place until the 
placement is secured and that all adult members of the household must 
participate in the orientation (proposed paragraph (i)(1)). Sponsors 
may work with the host family on accommodations so that all members of 
the household receive the orientation. The proposed regulation would 
also identify certain documents that the sponsor (or local coordinator) 
must provide and certain topics they must discuss. The documents a 
sponsor (or local coordinator) must present include the following: a 
copy of the fully executed Host Family Agreement; a copy of Sec.  62.31 
of the au pair regulations and any Department of State-issued brochures 
or letters regarding the au pair program; and a print-out of the 
current page(s) from the Internal Revenue Service's website on the 
topic of taxation of nonresident aliens. The link can be found at: 
https://www.irs.gov/individuals/international-taxpayers/taxation-of-nonresident-aliens. The sponsor should focus a discussion around the 
following topics: the purpose and intent of the au pair program and the 
family's role in achieving foreign policy objectives; cultural 
differences; all topics listed in the Host Family Agreement; the 
process of documenting au pair work hours; reporting problems and 
seeking assistance from the sponsor organization and/or the Department 
of State; the sponsor's obligation to ensure they provide the au pair a 
safe, comfortable, and clean home environment; and the sponsor's 
policies on reporting to the sponsor any material changes in family 
circumstances or composition, as well as sponsor policies for when an 
au pair needs to rematch with a host family.
    Any training that the au pair requires prior to the beginning of 
their exchange program shall be provided by the sponsor as proposed in 
Sec.  62.31(g) and may be compensable under the Fair Labor Standards 
Act (FLSA) and/or applicable state and local law. See 29 CFR 785.27 
through 31.

Protections

    The Department of State has included a new paragraph ``Au pair 
limitations and protections'' in proposed Sec.  62.31(k) to ensure that 
the au pair's time is balanced appropriately between personal time (for 
pursuing educational and cultural activities) and child care time.
    First, the Department of State would identify leave benefits to 
which an au pair is entitled, (e.g., adequate time off between child 
care duty obligations for rest and guaranteed paid time off and sick 
leave). Such benefits would also apply to au pairs who have extended 
their programs, and the number of days of leave for extensions are 
scaled to match the length of the extension period. With respect to 
paid time off, host families would be required to grant the leave that 
the au pair requests, so long as such request is made four weeks prior 
to the beginning of such leave. Of course, host families may be 
flexible and allow such leave if the au pair requests it with less lead 
time.
    At a minimum, sponsors would ensure that host families give au 
pairs an uninterrupted eight-hour period of rest every 24 hours to 
ensure adequate sleep and time away from duty (proposed paragraph 
(k)(1)(ii)). In addition, host families must give au pairs one and one-
half consecutive days off (36 hours) each calendar week and one 
complete weekend (48 hours) off each calendar month. The Department of 
State is introducing sick leave into the au pair program at the rate of 
56 hours of paid sick leave for a 12-month program and a prorated 
number of sick leave hours for program extensions shorter than 12 
months (proposed paragraph (k)(1)(iv)). If the need for sick leave is 
foreseeable, the request should be made seven days in advance. If the 
need for sick leave is not foreseeable, the au pair should request 
leave as soon as practicable after becoming aware of the need for sick 
leave.
    This rulemaking also proposes in Sec.  62.31(k)(1)(v) to provide 80 
hours of paid time off (i.e., the equivalent of ten working days) for a 
12-month program, at a time the au pair requests. The host family must 
permit the au pair to take 40 hours of such leave in conjunction with a 
36- or 48-hour weekend. Additional guidance to sponsors in ensuring 
compliance with the regulations include clarification that host 
families cannot dictate when au pairs may take vacation and they may 
not subtract any time off from the au pair's 80 hours leave time if the 
au pair joins a family vacation.
    Further, the proposed rule would explicitly state that no host 
family may deprive an au pair of access to, or hold or withhold without 
the au pair's permission, an au pair's identification papers (including 
passport and Social Security card), cellphone, flight tickets or other 
travel documents, Form DS-2019, or other personal property, or prevent 
communication between an au pair and the sponsor or the Department of 
State at any time, and between the au pair and his or her family while 
the au pair is not providing child care

[[Page 74076]]

(Sec.  62.31(k)(1)(vi)). Sponsors would be required to ensure that host 
families provide au pairs a safe, comfortable, and clean home 
environment free from sexual harassment, exploitation, or any other 
form of abuse, and they must respect the au pair's privacy, including 
both their personal living space and their personal belongings.
    Sponsors would be explicitly required to ensure that host family 
members do not photograph or create a video recording (e.g., use a 
nanny-cam) of an au pair without prior and ongoing consent by the au 
pair (proposed paragraph (k)(1)(viii)). Sponsors would also be required 
to ensure that host family members do not photograph or create a video 
recording of an au pair's private bedroom or primary bathroom while the 
au pair occupies them. The au pair is expected to respect the privacy 
of the host family children and should not take or use photographs of 
the children without parental consent.
    The Department of State has created an exchange visitors' rights 
and protections trifold, which is available to all exchange visitors 
at: https://j1visa.state.gov/participants/current/other-resources (From 
j1visa.state.gov, navigate to Participants [rarr] Current J-1 visa 
holders [rarr] Other Resources [rarr] Participant Brochures).

Au Pair Rematch to a New Host Family

    Both Department of State and sponsor surveys indicate broad 
satisfaction with the au pair program among current au pairs and 
alumni. Most au pairs return home with positive memories and long-
lasting friendships. Difficulties arise, however, when either a host 
family or an au pair seeks a rematch due to irreconcilable differences. 
The Department of State understands that there are certain 
circumstances that demonstrate that an au pair should not be rematched 
with a new family, (e.g., putting the children at risk; habitually 
breaking program, sponsor, or house rules, or behaving in a manner that 
could bring notoriety and disrepute to the Exchange Visitor Program). 
However, when au pairs should be rematched due to host family behavior, 
the au pairs are at a disadvantage: it is often difficult for sponsors 
to place an au pair with a history of problems with a host family--even 
if the host family was the problematic party in the arrangement. These 
new proposed regulations help protect au pairs seeking rematch by 
establishing different sponsor obligations to au pairs concerning 
rematching and refunding depending upon whether a sponsor deems an au 
pair to be qualified or unqualified for rematching.
    First, as discussed above, sponsors would be required to establish 
standard operating procedures they use to determine whether a displaced 
au pair is qualified for rematch. Sponsors would be required to share 
with new au pairs during the post-arrival orientation at the onset of 
their programs the criteria that they use in making such a 
determination. Standard procedures will prevent sponsors from declaring 
that an au pair that may be difficult to rematch is not qualified to be 
rematched. Sponsors screen both host families and au pairs for the 
program. It is the sponsors' responsibility to make certain that both 
parties have realistic expectations of what being or hosting an au pair 
entails. Au pairs bear significant costs, including air fare, to travel 
to the United States to participate in the Exchange Visitor Program. If 
circumstances outside their control require that the sponsor find them 
a new family, sponsors must have every incentive to find them a new 
placement in an expedient, fair and good faith manner.
    Next, sponsors would be explicitly required to report the need for 
a rematch to the Department of State by the next business day as 
outlined in the paragraph (r)(2) and Sec.  62.13(d). As also discussed 
above, the health, safety, and welfare of an exchange visitor is a 
primary Department of State concern. Circumstances may prevent a 
displaced au pair from remaining in the host family home until sponsors 
rematch a qualified au pair or until sponsors end an au pair's program 
(if circumstances warrant such action) and the au pair returns home. 
When an au pair is removed from the host family's home, sponsors must 
report this to the Department of State within the next business day and 
pursuant to reporting requirements at paragraph (r)(2). In accordance 
with Sec.  62.31(l)(1), sponsors would be required to end the au pair's 
program in the Student and Exchange Visitor Information System (SEVIS) 
if the sponsor determines that actions on the part of the au pair 
demonstrate their unsuitability to be placed with a new host family. Au 
pairs should return promptly home (using the return ticket or voucher, 
if they were required under sponsor policy to pay for one at the 
beginning of the program). Otherwise, sponsors must ensure that a 
return flight has been secured.
    Sponsors, however, have a greater responsibility to displaced au 
pairs who are qualified to be rematched. As discussed above, sponsors 
would be required to develop standard operating procedures for 
rematching qualified au pairs. Sponsors are responsible for ensuring 
the au pairs have a safe place to live and enough money for basic 
living expenses while they are awaiting a rematch. The Department of 
State recommends that sponsors establish a maximum period during which 
they will attempt to rematch the au pair and after which, they will be 
responsible for refunding a portion of all fees the au pair paid the 
sponsor, and the Department of State recommends that sponsors consider 
refunding a portion of a foreign third-party fee at a proportion 
determined by the length of time they were on program. The Department 
of State recommends, but does not require, that sponsors pay to au 
pairs the refunds due from any foreign third party and include 
reimbursement policies in their written agreement with such parties, 
keeping in mind that au pairs returning home may have additional costs 
expenses and could benefit from a prompt and total refund. Sponsors are 
reminded that the failure of their third parties to make full and 
timely required refunds will be attributed to the sponsor. Such 
financial arrangements are best handled by sponsors and their third 
parties and should not involve the au pairs. The Department of State 
seeks comment on such refund policies from sponsors and third parties, 
including on whether sponsors should be required to pay to au pairs the 
refunds due from any foreign third party.
    When sponsors successfully rematch qualified au pairs, it is up to 
the sponsors to work out with the new and prior host families the fair 
allocation of non-income benefits and the educational stipend, some 
portion of which the first family may have already provided the 
departing au pair. This is a business arrangement between sponsors and 
each host family, that by definition, should not involve the au pair. 
Under the proposed rule, au pairs that have completed 75 percent of 
their initial program or are on six-, nine-, or 12-month extensions may 
not request a rematch and are not entitled to any refund of fees paid 
(proposed paragraph (l)(4)).

Hours

    The Department of State also proposes in Sec.  62.31(m) that the au 
pair's hours and weekly schedule be outlined in the Host Family 
Agreement. Host families and au pairs would be required to discuss 
proposed changes, which the sponsor must approve and document. The 
hours of child care for which au pairs must be compensated is the 
maximum number of child care hours permitted within the selected 
exchange program, unless the au pair has exceeded the maximum hours

[[Page 74077]]

permitted, in which case the au pair must also be compensated for those 
excess hours (proposed paragraph (n)(1)). In all circumstances, the 
sponsor would be required to ensure the au pair is compensated for any 
hours worked, even if in excess of the maximum number of child care 
hours permitted. Even if au pairs work fewer hours, host families would 
be required to pay them for 31 hours for a part-time program or 40 
hours for a full-time program. Au pairs deserve to know the hours of 
child care they are expected to provide and the amount of compensation 
they will receive each week. Inconsistencies in hours may lead to 
issues in being able to pay their weekly expenses. The 40-hour maximum 
is a change from the current regulations at 22 CFR 62.31(a) and (j)(1), 
under which one program allows au pairs to regularly provide up to 45 
hours of child care a week.
    The Department of State believes reducing the maximum weekly child 
care hours for full-time au pairs has several benefits. While providing 
child care is a crucial part of the au pair program, au pairs come to 
the United States with a primary intent to engage in cultural exchange. 
Reducing the weekly working hours from 45 to 40 can help to ensure that 
au pairs have adequate time for fulfilling the education requirement, 
experience socializing in the community, and time for rest and leisure, 
which is important for their physical and mental well-being.
    By reducing their maximum weekly working hours, au pairs may be 
able to better manage their workload and avoid the negative effects of 
chronic stress. More host families are now able to work remotely or 
have flexible schedules, which may reduce the time they need au pairs 
to provide child care. Furthermore, reducing the weekly working hours 
of au pairs can help to improve the quality of care they provide to the 
host family. Some host families (or potential host families) may 
require more child care hours than the new regulations would allow. The 
number of families interested in the au pair program may decline as 
families may turn to other child care options. The Department of State 
recognizes that more Americans and potential au pairs may forego the 
cultural exchange opportunities available through the au pair program, 
but believes the reduction in maximum hours is necessary to the overall 
success of the program.
    As discussed elsewhere, an au pair may not work hours in excess of 
their program's maximum-hours limit except under very limited exigent 
circumstances. In addition, the Department of State proposes to 
explicitly prohibit ``unworked'' hours (i.e., the difference between an 
au pair's actual hours worked in a week and their program's maximum-
hours limit) from being carried over to the next week to exceed the 
program's maximum-hours limit in that next week in proposed paragraph 
(m)(1)(ii). In other words, each workweek stands alone. The Department 
of State proposes to require host families and au pairs to track daily 
child care hours in a sponsor-approved format.
    The proposed rule would expressly prohibit au pairs from providing 
child care between the hours of 11:00 p.m. and 5:00 a.m. unless exigent 
circumstances arise (proposed paragraph (m)(4)). The Department of 
State seeks comment on whether a compensation or other mechanism could 
similarly discourage host families from routinely failing to make 
alternative arrangements.
    In addition to providing child care, au pairs participate in 
regular family activities and cultural experiences, such as going to 
restaurants, movies, theme parks, museums, theatre/opera, concerts, and 
sporting events with family members The au pair regulations also 
currently require au pair sponsors to host a ``family day conference'' 
that all au pairs and host families must attend at least once annually 
(current 22 CFR 62.31(i)(3) and proposed paragraph (p)(4)). This 
proposal would amend the regulations to include the required family day 
conference as part of the au pair's workday so that it will be counted 
for purposes of the programs' maximum hours threshold. Relatedly, the 
Department of State proposes that the regulations be amended to clarify 
that time spent with host families in which the au pair is entirely 
relieved of all child care duties and voluntarily participating as a 
member of the family (and free to use the time for their own purposes), 
not as a caretaker, is not considered work hours. This would be 
consistent with Department of Labor guidance regarding hours worked 
under the FLSA for workers who provide similar services as au pairs. 
See, e.g., 29 CFR 552.102(a), 29 CFR 785.23, and Wage and Hour Division 
Fact Sheet #79D (available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs79d.pdf). Thus, time spent by an au pair 
voluntarily attending a meal, movie, or sporting event with a host 
family, for example, and during which the au pair is entirely relieved 
from all child care duties, would not be work hours.

Compensation

    Stipends. The current compensation mechanism provides for a 
standard weekly stipend based on the current 45-hour workweek, 
regardless of how many hours an au pair works. The minimum weekly 
stipend for au pairs is currently calculated by multiplying the current 
federal minimum wage by 45 hours and then deducting a credit for room 
and board. This formula applies across the country, without taking into 
account the geographically-specific variations in costs of living. 
Numerous states and localities have adopted minimum wage rates that 
exceed the federal FLSA minimum wage. Over the past few years, au pair 
and interest group confusion over and dissatisfaction with the current 
compensation framework has resulted in nation-wide litigation.
    As discussed below, the Department of State has previously 
expressed the view that a nationwide approach to au pair compensation 
required a nationally uniform compensation formula based on the federal 
minimum wage and that the current regulations were intended to preempt 
and thus render inapplicable conflicting or otherwise inconsistent 
state and local labor laws, including state and local minimum wage and 
overtime pay requirements. However, the Department of State recognizes 
that the context in which the au pair compensation formula was 
established in the mid-1990s is no longer appropriate and has 
considered potential alternatives during its ongoing review of the 
category. The Department of State's review of the Au pair category of 
the Exchange Visitor Program has revealed that the federal minimum wage 
no longer provides sufficient compensation to au pairs placed in 
geographic areas in which growing number of states and localities have 
adopted state or local minimum wages that exceed the federal minimum 
wage. Accordingly, the Department of State is proposing to modify the 
regulations to require the calculation of au pairs' weekly compensation 
to be based on the tier of the highest of the applicable federal, 
state, or local minimum wage in the city/state of host family residence 
so that au pairs are paid at least the highest applicable minimum wage. 
Under the proposed rule, sponsors would require host families to 
identify their state and local minimum wages on their host family 
application, rates which the sponsor should confirm. Sponsors would 
also require host families to notify the sponsor if there is a change 
to the federal, state, or local minimum wage during the au pair's 
program, and if necessary, initiate an updated Host

[[Page 74078]]

Family Agreement. The Department of State understands that some host 
families may not be able to afford an au pair and may be priced out of 
the program. Sponsor organizations could suffer negative business 
consequences and revenue losses if the host family pool decreases and 
thus creates less demand for au pairs. Prospective au pairs may only be 
interested in going to destinations in the United States with higher 
minimum wages, contributing to diminished diversity and equity in the 
program. Some stakeholders may prefer a single compensation formula. 
Therefore, the Department of State is seeking to simplify the 
administration of the compensation structure and, as discussed later, 
seeks public comment on the delayed implementation of these and the 
other proposed revisions.
    The Department of State is proposing to modify Sec.  62.31(n)(4) to 
reflect a four-tiered au pair compensation mechanism based on the 
highest of the federal, state, or local minimum wage. The Department of 
State is not asserting that its proposed regulations would preempt 
state and local minimum wage and overtime pay laws as they apply to au 
pairs.
    The Department of State proposes to adopt a national four-tiered 
wage formula to provide consistency in au pair compensation across 
geographic regions and in areas with similar local economic conditions. 
The proposed tiered compensation chart is as follows:

               Table 1--Proposed Compensation Tiered Chart
------------------------------------------------------------------------
                        Based upon the host
                          family city, the
                        highest of federal,        Au pair receives
                          state, or local
                            minimum wage
------------------------------------------------------------------------
Tier 1...............  $7.25-$8.00 per hour.  $8 per hour.
Tier 2...............  $8.01-$12.00 per hour  $12 per hour.
Tier 3...............  $12.01-$15.00 per      $15 per hour.
                        hour.
Tier 4...............  $15.01-$18.00 per      $18 per hour.*
                        hour.
------------------------------------------------------------------------
* Or the applicable federal, state, or local minimum hourly wage, if
  higher.

    A four-tiered wage formula would also ease administrative burdens 
in regulating or overseeing au pair compensation when the relevant 
minimum wage changes within a tier. The maximum hourly wage an au pair 
would receive is normally determined by the wage of the highest tier in 
the compensation chart; however, if the federal, state, or local 
government has a minimum hourly wage higher than the highest hourly 
rate on the chart, then the au pair must be paid that higher hourly 
wage.
    The proposed rule would provide that the Department of State will 
periodically, but no less than every three years (or at any shorter 
interval that is desirable and feasible), update the hourly pay rates 
in the four-tiered au pair compensation chart by Federal Register 
notice in response to changing economic conditions (e.g., if a state or 
locality's minimum wage exceeds the highest tier). The increase will be 
accomplished by adjusting the upper range of each tier by an identical 
amount each update cycle. For example, if the Department of State 
chooses in the first update cycle to increase the upper range of each 
tier by $2, the chart would read as follows:

 Table 2--Hypothetical Compensation Tiered Chart Adjustment Based Upon a
                               $2 Increase
------------------------------------------------------------------------
                        Based upon the host
                          family city, the
                        highest of federal,        Au pair receives
                        state, or local min
                                wage
------------------------------------------------------------------------
Tier 1...............  $7.25-$10.00 per hour  $10 per hour.
Tier 2...............  $10.01-$14.00 per      $14 per hour.
                        hour.
Tier 3...............  $14.01-$17.00 per      $17 per hour.
                        hour.
Tier 4...............  $17.01-$20.00 per      $20 per hour.*
                        hour.
------------------------------------------------------------------------
* Or the applicable federal, state, or local minimum hourly wage, if
  higher.

    Periodically updating the chart by Federal Register Notice is 
necessary to provide the Department of State with flexibility to 
increase the hourly pay rates in the compensation chart due to the 
uncertainty of future economic conditions.
    Room and Board. The new regulations at Sec.  62.31(n)(2) address 
host family deductions for au pairs' room and board. Host families must 
calculate such deductions according to FLSA requirements. The 
Department of State currently permits au pair room and board deductions 
and proposes to maintain a policy in the proposed rule, as described in 
the terms below.
    Under section 3(m) of the FLSA (29 U.S.C. 203(m)), a credit toward 
the federal minimum wages due an employee is permissible for meals, 
lodging, and other facilities, if certain requirements are met based on 
the reasonable cost or fair value of the facilities furnished. The 
section 3(m) credit may not exceed the ``reasonable cost'' or ``fair 
value'' of the facilities furnished, whichever is less. See 29 U.S.C. 
203(m). Reasonable cost is ``not more than the actual cost to the 
employer of the board, lodging, or other facilities customarily 
furnished by him to his employees.'' 29 CFR 531.3(a). Credits for room 
and board may be taken only when the employee actually receives the 
lodging and meals per 29 CFR 531.30.
    The following amounts reflect permissible credits under the FLSA 
towards an au pair's wages for Meals provided (per day):

Breakfast Up to 37.5% of the minimum wage = $2.72
Lunch Up to 50.0% of the minimum wage = $3.63
Dinner Up to 62.5% of the minimum wage = $4.53
Totals: = $10.88 per day
7 days x $10.88 = $76.16 per week for meals credit.

    The following amount is a permissible credit under the FLSA towards 
an au pair's wages for Lodging provided (per week):
    Up to seven and one-half times the federal minimum wage for each 
week.

7.5 x $7.25 = $54.38 per week for Lodging credit.

    Pursuant to 29 CFR 552.100, the total permissible credit towards an 
au pair's wages per week for a full seven days of room and board 
actually provided is: $76.16 (meals) + $54.38 (lodging) = $130.54.

[[Page 74079]]

    Calculation of weekly permissible room and board credits does not 
depend on whether the au pair is full-time or part-time or which wage 
tier determines the au pair's hourly rate or whether the au pair is 
paid overtime that week. The credit is determined based on the meals 
and lodging actually provided to the au pair during the week and is 
then subtracted from the wages otherwise due the au pair for that week. 
To the extent that a state or locality permits only a smaller credit 
for au pairs than permissible credits under the FLSA discussed above, 
the state or local law or regulation permitting only such smaller 
deductions would be preempted by these regulations (proposed paragraph 
(t)).
    Overtime. When part-time au pairs work more than 31 hours in a week 
but not more than 40 hours, the Department of State proposes to require 
au pairs to be compensated for those excess hours at the hourly rate of 
the applicable tier identified in paragraph (n)(4)(ii) of the 
regulations or the highest of the applicable federal, state, or local 
minimum wage, if higher. When part-time or full-time au pairs work over 
40 hours in a week, the Department of State proposes to require au 
pairs shall be compensated for those excess hours at the hourly rate of 
the applicable tier identified in paragraph (n)(4)(ii) of the 
regulations or the highest of the applicable federal, state, or local 
minimum wage if higher, and they must also be paid any overtime premium 
due under applicable federal, state, or local law (proposed paragraph 
(n)(4)(iv)). In addition, the proposed rule would require au pairs must 
be paid any other overtime premiums due under applicable federal, 
state, or local law for other hours worked. These regulations would not 
preempt state and local laws regarding overtime pay as host families 
are discouraged from requiring au pairs to work additional hours in 
contravention of program policies and regulatory requirements.
    The Department of State encourages public comment on this 
alternative calculation of au pairs' compensation and welcomes other 
proposals of alternative calculations that maintain a uniform national 
stipend formula that accommodates variations in federal, state, and 
local minimum wage rates. Any viable proposal must remain true to the 
core objective of all international exchanges conducted pursuant to the 
Fulbright-Hays Act, i.e., to serve as a cultural program designed to 
meet the crucial foreign policy goal of enhancing mutual understanding 
between people of our nation and other nations.
    Assuming adherence to the programs' maximum hours provisions, the 
regulations would continue to not permit week-to-week variation in the 
stipend amount (although there may be week-to-week variation in the 
credit taken for lodging and meals actually provided) since, as 
discussed above, stipends are based on the maximum weekly hours 
established for the part-time and full-time program options. However, 
maintenance of a weekly record of hours, payment, and deductions would 
be required to provide sponsors with documentation to demonstrate that 
host families are complying with important regulatory requirements. 
Sponsors would be required to review such documentation to confirm that 
au pairs are working only the required hours, are provided their paid 
time off, and are charged for in-kind benefits (e.g., gym membership, 
cell phones) only as the au pair and host family agreed in the Host 
Family Agreement and only as permitted by paragraph (n)(3) of the 
proposed regulations. The Department of State seeks comment on this 
proposed method of documenting that host families do not require au 
pairs to exceed the maximum number of child care hours each day or week 
and that they compensate au pairs (with income and non-income benefits, 
e.g., leave) in accordance with the regulations.
    The proposed rule would require sponsors to ensure that host 
families provide au pairs copies of this tracking document on a weekly 
basis throughout the exchange program (paragraph (m)(6)(ii)). Further, 
sponsor organizations would be required to collect and review copies of 
the timesheets each month. Such review may be conducted by field or 
headquarters staff, and sponsors are reminded of their obligation to 
retain copies of all weekly documents timesheets for three years 
following the end of the au pair's program in accordance with Sec.  
62.10(g).

Educational Component

    Because completion of this portion of an au pair program is 
critical for achieving the objectives of the Fulbright-Hays Act, the 
Department of State proposes four alternative types of educational 
programs to provide more flexibility to facilitate au pairs' pursuit of 
this requirement. The Department of State seeks comment on these or 
other similar alternatives, especially with respect to the required 
number of hours for each option and whether the new, higher educational 
stipend is sufficient given current and perhaps geographically-
dependent costs of education.
    The regulations retain the traditional academic option currently 
set forth at 62.31(k) for those au pairs who are seeking the 
opportunity to advance their academic education while on program by 
obtaining a minimum of six semester hours at an accredited U.S. 
academic institution. It should be noted that the academic option being 
proposed in paragraph (o)(1) is the only one that may have a virtual 
component. Au pairs would have the option of attending in-person 
classes or taking a subset of classes online during their program. In-
person exchanges are still a critical component of the Exchange Visitor 
Program and ensure that au pairs have a chance to be exposed to 
Americans outside of the host family. Thus, the Department of State 
proposes, under paragraph (o)(1)(i)(A), to permit au pairs pursing the 
academic option to complete no more than one third of the required 
coursework online if local circumstances permit.
    Not all individuals have academic goals, however, and the interests 
of some au pairs may be better met through continuing education 
programs. Accordingly, the Department of State has proposed to allow 
coursework at continuing educational institutions (Sec.  62.31(o)(2)) 
as sufficient for meeting the educational component requirement.
    In the past, the Department of State has rejected au pair 
attendance at, for example, weekend courses at a campus setting that 
are attended exclusively by au pairs. While this option allows au pairs 
to interact with one another, it does not provide the opportunity to 
mingle primarily with U.S. students. However, after further 
consideration, the Department of State recognizes that courses that are 
customized for the au pair community offer other distinct benefits. 
Sponsors and the academic institutions with which they jointly design 
such courses have the opportunity to develop a curriculum that 
highlights U.S. history and values, e.g., rule of law, civil rights, 
and democratic values. Such concentrated exposure to the U.S. culture 
can provide au pairs with a relevant and focused cultural and 
historical overview that is not available through traditional academic 
and educational institutions. Accordingly, the Department of State 
proposes and seeks comment on this option (Sec.  62.31(o)(3)).
    Depending upon the geographic location where an au pair is placed, 
there may be limited options for academic and/or continuing education 
opportunities. As volunteerism is a U.S.

[[Page 74080]]

value, the Department of State offers an option that allows au pairs to 
fulfill half their educational requirement by volunteering with a tax-
exempt nonprofit organization as described in section 501(c)(3) of the 
U.S. Internal Revenue Code (Sec.  62.31(o)(4)). This provides 
additional flexibility from both a time perspective and by 
accommodating the various interests of exchange visitors. The other 
half of the component may be met by pursuing either academic coursework 
or continuing education classes. The Department of State seeks comments 
on all these options and welcomes comments on additional ways of 
meeting the educational component requirement.
    The Department of State recognizes that the cost of education has 
increased significantly over the years and that an increase in the 
educational stipend amount is long overdue. The current regulations 
require host families to pay $500 towards the au pair's six semester 
hours of education. The Department of State is proposing to increase 
the stipend paid by host families to $1,200. The review of several two-
year or community colleges averaged $130 per credit hour x six credit 
hours, plus cost of registration, books, etc. The Department of State 
seeks comment as to whether the increase to $1,200 is sufficient to 
cover most of the educational expense au pairs will incur (Sec.  
62.31(o)(6)).\2\ Host families may pay the stipend either directly to 
the au pair or to the appropriate institution. As discussed above, in 
case of a rematch, the Department of State expects sponsors to arrange 
the equitable distribution of the stipend cost between the host 
families without involving the au pair. Sponsors must also be prepared 
to ensure that an au pair that is part-way through a course and is 
rematched to a new geographical location has sufficient resources to 
reenroll in classes at the new locale.
---------------------------------------------------------------------------

    \2\ https://educationdata.org/cost-of-a-college-class-or-credit-hour (suggesting the average cost of a credit hour at a community 
college or in-district school is $141 per credit hour); https://www.bestcolleges.com/research/college-cost-per-credit-hour (``Two-
year public schools, or community colleges, charge the least at just 
under $120 per credit hour.'').
---------------------------------------------------------------------------

    As with paid time off and sick leave, the number of education hours 
au pairs must complete during any extension period would vary, as they 
do now, based upon the length of the program extension. The Department 
of State seeks comment on the four options, the required compensation 
amounts, and the number of hours that should be required for extensions 
(recognizing that extension periods may not always line up with 
institutions' course schedules). The Department of State intends for 
the hour commitment among the four options to be substantially the same 
and seeks comment on whether its proposed hourly requirements achieve 
this goal.

Reporting

    The Department of State proposes to require third party vetting and 
reporting similar to that currently required under the Summer Work 
Travel program. Au pair sponsors would be required to vet all foreign 
third parties as defined in Sec.  62.2 (e.g., overseas agents or 
partners) that assist them in fulfilling the program responsibilities 
under Sec.  62.10 that may be conducted outside the United States. Such 
vetting would include reviewing and documenting previous bankruptcies 
or pending legal actions, summaries of the entities' prior J-1 Exchange 
Visitor visa experience, and copies of sponsor-approved advertising 
materials. After sponsors have successfully vetted foreign third 
parties, they would be required to provide the Department of State with 
that third party's name and contact information (i.e., telephone 
number, email address, street address, city address, point of contact, 
and website address) within 30 days of execution of the agreement by 
providing the Department of State with a Foreign Entity Report. The 
sponsor also must provide the Department of State with updated contact 
information for its foreign third party within 30 days after receiving 
notice of any change in that party's contact information. Although 
sponsors do not need to work with foreign third parties, they may not 
work with those foreign third parties that are not included in the 
Foreign Entity Report. If any material information (e.g., contact 
information, financial status, relationship with sponsor) changes, 
sponsors must provide this information to the Department of State 
within 30 days.
    The foreign third parties' initial outreach to potential program 
applicants sets the stage for participants' expectations about the au 
pair program. Sponsors must be aware of what the foreign third parties 
are posting on websites, communicating through social media, and 
distributing in printed materials to ensure the information conforms to 
the purpose and intent of the program and meets regulatory 
requirements. It is important, for example, that the cultural exchange 
aspects of the program are accentuated, and that au pair applicants' 
expectations about hours and compensation are realistic.
    In addition, to better manage expectations and provide au pair 
program applicants and selected au pairs with greater transparency 
regarding the fees they may be charged to participate in the program, 
the Department of State is adding a requirement that sponsors submit a 
list of all fees, including recruitment fees or associated costs, that 
either they or their foreign third parties may charge applicants to 
apply for and participate in the program. Such list must describe the 
services associated with each fee and clarify whether the fees are 
estimated or fixed, refundable or non-refundable, and mandatory or 
optional.
    In 2014, the Department of State extended the management review 
requirement to other categories of the Exchange Visitor Program. The 
Department of State is keeping the current regulatory language 
requiring a report by a certified public accountant until Sec.  
62.15(b) of subpart A (General Provisions) is updated. The only 
proposed change is to add language in which the Department of State 
will release a schedule approved by the Department of State for 
submission of the report.

Preservation of Additional Features of the Au Pair Category

    As previously explained, the Exchange Visitor Program is first and 
foremost a diplomatic tool that supports U.S. foreign policy 
objectives. Accordingly, a number of program features set forth in the 
regulations are key to the program's operation as a diplomatic tool. 
Given the Department of State's exercise of its discretion under the 
Fulbright-Hays Act in arriving at this balance, the Department of State 
is also proposing to amend the federal au pair regulations to provide 
explicitly that the regulations establish the exclusive requirements 
applicable to host families and sponsors on certain matters and may not 
be supplemented by state or local law. As proposed in paragraph (t)(1), 
these key program features must not be supplemented or contravened by 
state or local law, namely: (a) au pair selection; (b) au pair 
placement; (c) hours and compensation (except for state and local 
minimum wage and overtime pay requirements, as described below); (d) 
unemployment insurance tax and employment training taxes; (e) minimum 
time off and paid time off and sick leave; and, (f) educational 
component. These elements all work in concert to create a program that 
meets foreign policy goals of establishing mutual understanding through 
cultural exchange and emphasizes the value of the au pair's

[[Page 74081]]

integration with an American family even when not providing child care. 
The Department of State also proposes in paragraph (t)(2) that 
regulatory framework provided under this section shall preempt any 
state or local law that, in the Department of State's view, otherwise 
poses an obstacle to the realization of the objectives of the Au pair 
category of the Exchange Visitor Program. Notwithstanding the 
foregoing, state and local minimum wage and overtime pay requirements 
shall apply to au pairs where applicable and shall not be deemed to be 
an obstacle to achievement of the objectives of the Au pair category of 
the Exchange Visitor Program.
    Au pair programs operate in the field of foreign affairs, an area 
that has long been reserved to the U.S. Federal Government. In 1985, 
and by statute, Congress authorized the Director of the U.S. 
Information Agency to provide for au pair programs. In 1994, Congress 
directed the U.S. Information Agency to continue the au pair program 
within the Exchange Visitor Program and to prescribe regulations 
governing it (see Pub. L. 103-415, 1, 108 Stat. 4299, 4302 (1994)). 
Congress has since further extended the program and made it permanent 
in 1997 (see Pub. L. 105-48, 111 Stat. 1165 (1997)). In so doing, 
Congress believed this distinctly federal program would further the 
United States' objectives in the areas of foreign relations and 
international diplomacy, two areas ``inherently federal in character.'' 
Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 374 (2001). The 
Exchange Visitor Program ``originates from, is governed by, and 
terminates according to federal law.'' Id. When the Fulbright-Hays Act 
authorized educational and cultural exchanges, the Act also created ``a 
new nonimmigrant visa, category (J), to serve solely the purposes of 
the Mutual Educational and Cultural Exchange Act of 1961.'' H. R. Rep. 
No. 1197, at 17 (1961) (Conf. Rep.). The federal regulations provide 
the exclusive terms under which an au pair exchange visitor may enter 
the country, as the ``[p]ower to regulate immigration is unquestionably 
exclusively a federal power.'' De Canas v. Bica, 424 U.S. 351, 354 
(1976).
    The Department of State is proposing to expressly preempt state and 
local law in the areas of au pair selection, au pair placement, and the 
educational component. Congress has authorized the Department to create 
a federal international exchange program that brings young adults into 
the country for an educational and cultural experience. The Department 
of State balances the needs of au pairs, sponsors, and host families 
and their communities in these regulations when it determines the 
eligibility and placement terms that best advance the foreign policy 
and diplomatic objectives of the federal government. Contrary state 
rules in these areas would upend that well-considered approach.
    In addition, the Department of State is proposing to preempt state 
and local law in the areas of hours and compensation (except for state 
and local minimum wage and overtime pay requirements, as described 
below) and minimum time off and paid time off vacation and sick leave. 
As discussed supra, the Department of State has previously expressed 
the view that a nationwide approach to au pair compensation required a 
nationally uniform compensation formula. The Department of State 
recognizes that the federal minimum wage no longer provides sufficient 
compensation to au pairs, and that a significant number of states and 
localities have adopted state or local minimum wages that exceed the 
federal minimum wage. Accordingly, the Department of State is proposing 
to modify the regulations to require the calculation of au pairs' 
weekly compensation to be based on the tier of the highest of the 
applicable federal, state, or local minimum wage in the city/state of 
host family residence so that au pairs are paid at least the highest 
applicable minimum wage. The Department of State also proposes to 
reduce maximum weekly hours of child care to forty hours and remove the 
overtime option, with the exception of limited exigent circumstances. 
State and local law related to room and board deductions would be 
preempted to preserve a uniform compensation scheme. With this federal 
structure in place, the au pair program would continue to operate on a 
nationwide uniform basis for hours and compensation while not 
preempting state and local minimum wage and overtime pay requirements. 
The Department of State would not preempt state and local laws 
regarding overtime pay as host families are discouraged from requiring 
au pairs to work additional hours in contravention of program policies 
and regulatory requirements.
    Under paragraph (t)(1)(d), the Department of State proposes to 
preempt all state unemployment insurance taxes and the employment 
training taxes described below. In addition to carving out a new visa 
category, the Fulbright-Hays Act amended the Internal Revenue Code 
relating to the definition of employment for purposes of Federal 
Insurance Contributions Act (FICA) contributions and the Federal 
Unemployment Tax Act. Section 110(e) of the Fulbright-Hays Act exempts 
exchange visitors from paying FICA taxes on services authorized by the 
program, since they are ``temporarily'' in the United States and 
``scarcely have any expectation of realizing benefits from such a tax 
payment.'' See H. R. Rep. No. 1197, at 19. Section 110(f) removes the 
obligation of employers to pay Federal unemployment tax on certain 
authorized exchange visitor services.\3\ The Conference Report notes 
that ``exchange visitors could rarely, if ever, be in a position to 
benefit from unemployment compensation coverage.'' Id. Congress crafted 
a nuanced approach to exchange programs to further U.S. foreign policy 
objectives, distinguishing exchange visitor programs from temporary 
employment programs.
---------------------------------------------------------------------------

    \3\ The exemptions from FICA taxes and Federal unemployment tax 
under section 110 of the Fulbright-Hays Act were codified in 
sections 3121(b)(19) and 3306(c)(19) of the Internal Revenue Code, 
respectively. These exemptions apply to the extent that the exchange 
visitors are nonresident aliens. An exchange visitor who has 
previously been in the United States on temporary nonimmigrant 
status as a student, teacher, trainee, or researcher under 
subparagraph (F), (J), (M), or (Q) of 8 U.S.C. 1101(a)(15) could be 
a resident alien during their current stay in the United States and, 
therefore, may be subject to FICA taxes and Federal unemployment tax 
if their annual wages exceed the applicable dollar threshold. See 26 
U.S.C. 3121(b)(19), 3306(c)(19), and 7701(b), and 26 CFR 
31.3121(b)(19)-1(a)(1) and 31.3306(c)(18)-1(a)(1).
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    Under paragraph (t)(1)(d), the Department of State proposes to 
preempt all state unemployment insurance taxes and the employment 
training taxes described below. Under Federal law, compensation paid to 
au pairs is often deemed to be exempt from the requirement that 
employers pay Federal unemployment taxes on their wages. The exact 
conditions for determining when the wages may be subject to Federal 
unemployment tax can be found by consulting the IRS website on au 
pairs, in addition to Publication 926, Household Employer's Tax Guide.
    In most cases, au pairs, who are between the age of 18 to 26, come 
to the United States to participate for the first time in an au pair 
program and are required to return home once they successfully complete 
the program. As the au pair program does not provide work authorization 
after the program ends, an au pair would not be eligible for 
unemployment benefits unless they obtained other authorization to work 
in the United States beyond the au pair program, and payment of

[[Page 74082]]

unemployment taxes on these wages would not be the responsibility of 
the au pair `s host family. Therefore, the Department of State does not 
expect host families to be required to pay state or local unemployment 
insurance taxes or the employment training taxes described below.
    Unemployment insurance is a joint state-federal program that 
provides cash benefits to eligible workers. States have various types 
of unemployment tax requirements that may require employers to pay a 
payroll tax, also known as a State Unemployment Tax Act (SUTA) tax. 
States use funds to pay out unemployment insurance benefits to 
unemployed workers. States might also refer to SUTA tax as State 
unemployment insurance, SUI tax, or Reemployment tax (e.g., Florida). 
In most states, unemployment insurance is an employer-only tax. 
However, employees in certain states (e.g., Alaska, New Jersey, and 
Pennsylvania) must also pay an unemployment insurance tax.
    Some states have an employment training tax, which generally 
provides funds to train employees in targeted industries, teach workers 
new skills, and promote businesses to make businesses more competitive. 
Like unemployment insurance, employment training taxes are paid by 
employers and businesses. States refer to employment training taxes 
using different terms, such as an Employment & Training Investment 
Assessment (e.g., Texas). In any case, the assessment is imposed on 
each employer as a percentage of wages paid by an employer. As 
discussed above, au pairs do not have general work authorization, and 
once their exchange program ends, are expected to return home. 
Therefore, employment training taxes do little to protect or benefit au 
pairs. In addition, the Department of State is aware of the cumulative 
costs of this rulemaking on prospective host families and seeks to 
broaden the pool of interested host families as much as possible. The 
Department of State is concerned about burdening au pair programs with 
the payment of additional general welfare taxes so as to further 
restrict affordability of the program to the most wealthy host 
families. For these reasons, the Department of State proposes to 
expressly preempt state or local laws related to employment training 
taxes.
    If state and local laws interfere with the fulfillment of the au 
pair program in a capacity that frustrates Congressional objectives and 
the President's foreign affairs prerogatives, the Department of State 
may choose to regulate to reflect the preemption of state and local 
law. The Department of State proposes this rulemaking to affirm the 
exclusivity of Federal regulation over the au pair program in certain 
areas expressly identified in proposed paragraph (t) that could 
frustrate the primacy of the Federal Government in the conduct of 
foreign affairs and immigration if such matters were regulated by the 
States.
    In doing so, the proposed rule is consistent with the ruling in 
Capron v. Office of the Attorney General of the Commonwealth of 
Massachusetts, 944 F.3d 9 (1st Cir. 2019). The First Circuit noted in 
the Capron decision that the Department of State ``would be free to 
preempt . . . [the relevant] state laws now by revising the 
regulations.'' Id. at 44.
    In that case, the Department of State advanced its view that the 
existing Federal au pair regulations already preempt state and local 
laws pertaining to the terms of employment in the au pair program. The 
au pair program is a creation of Federal law and operates in the 
spheres of foreign affairs and immigration, two areas that have been 
exclusively reserved to the Federal Government. The Department of State 
argued that the requirement that Responsible Officers of programs with 
an employment component have a ``detailed knowledge of federal, state, 
and local laws pertaining to employment'' did not indicate otherwise. 
The Department of State has an important policy interest in ensuring 
that applicable state or local law with respect to matters not 
addressed by Federal regulations continues to protect participants in 
the program. While Capron dealt with whether Federal regulations 
preempt Massachusetts from requiring host families to comply with 
various state laws, the Department of State believes its arguments 
would have applied with equal, if not greater, force in the context of 
preemption of state law directed at sponsors. The Department of State 
argued that the regulations provide a comprehensive framework for the 
terms of employment in the program, leaving no room for state law 
whether applied to host families or sponsors.
    Nevertheless, the First Circuit decision in Capron concluded that 
Federal au pair regulations do not, as currently written, preempt state 
and local law, and this has led to a great deal of confusion among au 
pair sponsor organizations, au pairs, host families, and state/local 
governments about the relationship between the Federal au pair 
regulations and state and local law. Indeed, this ruling has caused an 
immediate negative impact on the au pair program. Families inviting an 
au pair into their home to share a cultural exchange experience incur 
significant personal and financial burdens; predictable program 
requirements are necessary for families to make this decision. 
Uncertainty about whether Federal or State/local law requirements 
apply, or how these provisions apply simultaneously, has made it 
extremely difficult for the families to anticipate their 
responsibilities, costs, administrative burdens, and ultimately their 
ability to host an au pair. The proliferation of additional lawsuits 
concerning the au pair program in the wake of the Capron decision has 
only added to this uncertainty. In addition, families that were 
adhering to the Federal regulations in good faith may now find 
themselves accused of violating state and local laws and facing legal 
exposure.
    In addition to the minimum wage issue discussed above, the proposed 
rule would clarify the calculation of the room and board deduction 
under the FLSA. The requirements that an au pair live with an American 
host family and participate directly in home life, and the availability 
of the deduction to the host family, are key features of the au pair 
program because they facilitate the au pair's participation in daily 
family life, entertainment, and meals. Similarly, in order to help 
build strong relationships with their American host families, au pairs 
are not permitted under the au pair regulations to provide child care 
for multiple families (proposed in paragraph (e)(1)(v)) or work for any 
other employer, whereas states/localities may permit a domestic worker 
to work for multiple employers. The Federal regulations for the au pair 
program offer other nationwide benefits and protections to au pairs 
including the requirement that au pairs be given certain time off and 
two weeks of paid time off.
    Under the First Circuit ruling in Capron, it is unclear to host 
families what obligations they have that extend beyond those provided 
in the current au pair regulations. As a result, sponsors have reported 
a decrease in prospective host families interested in participating in 
the program. One sponsor notified the Department of State that they no 
longer would place au pairs or run their exchange program in the state 
of Massachusetts. Data from the SEVIS reports that there were 1,457 au 
pairs placed in Massachusetts in 2019. The number of au pairs has 
declined each year since the ruling. In 2021 and 2022, there were 528 
and 454 au pairs respectively placed in Massachusetts. The prospect of 
litigation in other jurisdictions and interest in new state and local 
law measures to regulate the

[[Page 74083]]

terms of au pair employment has dramatically increased. The Department 
of State believes it is urgent to bring clarity to this issue by 
promulgating this rulemaking, and thereby preserving a nationwide 
approach to the au pair program and facilitating a cultural exchange 
program experience that meets U.S. foreign policy objectives.

Severability

    The Department of State proposes to include a severability clause 
in Sec.  62.31(u), such that if any provision is held invalid or 
unenforceable, it would not affect the remainder of the rule. The 
Department of State believes that the provisions of this rulemaking are 
necessary to further the foreign affairs and diplomacy purposes of the 
Fulbright-Hays Act. To the extent that any provision is held invalid or 
unenforceable, the Department of State intends for the remaining 
provisions to continue to operate and protect au pairs, sponsors, and 
other stakeholders in the au pair program.
    Proposed Sec.  62.31(u) would establish that in the event that any 
provision of this section is held invalid as applied to any person or 
circumstance, the Department of State intends for such provision to be 
construed to have maximum effect as applied to other persons or 
circumstances to the extent permitted under law. If such provision is 
deemed invalid and unenforceable in any circumstance, the Department of 
State intends for such provision to be severable from the remaining 
provisions of this section.

Reliance Interests

    The Department of State recognizes that sponsors, host families, au 
pairs, and their communities may have reliance interests of varying 
degrees in the current au pair program. The Department of State 
understands that sponsors may have relied upon the current regulations 
in deciding to seek designation to conduct exchange programs; in hiring 
staff and recruiting potential exchange visitors; and in making other 
business choices. Au pair sponsors invest a significant amount of time 
and resources into recruiting and selecting host families and au pairs. 
Any sudden changes to the program regulations could disrupt this 
investment and cause significant uncertainty and stress for sponsors, 
host families, and au pairs. The Department of State is aware that this 
rulemaking may decrease the number of au pairs participating in sponsor 
programs, but the Department believes that the benefits of reducing 
confusion about the relationship between the Federal au pair 
regulations and state and local law will help to increase 
participation. Further, the rulemaking includes a number of safeguards 
for au pairs and host families that may also increase participation and 
ultimately benefit sponsors. Nonetheless, as discussed below, the 
Department of State proposes to delay the effective date of the final 
rule for approximately six months to allow sponsors time to reevaluate 
their programs before the new regulations go into effect.
    The Department of State has also considered the effect of this 
proposed rule on families that are currently hosting au pairs. Host 
families may have decided to participate in an exchange program under 
the existing rules and unexpectedly face new costs if subject to the 
new regulations immediately. The effects on host families will include 
paying more than twice as much in au pair compensation as they 
currently do in some localities. In consideration of these reliance 
interests, the Department of State proposes to ``grandfather'' au pairs 
(and their host families) on exchange programs that began prior to the 
final rule's effective date, (i.e., 180 days from publication of the 
final rule). Such exchange programs will not be subject to the new 
rules for the duration of the initial one-year program, or for up to 
one year if the au pair is currently on an extension. Current host 
families that intended to extend participation of their current au pair 
will be subject to the new regulations 180 days after publication of 
the final rule. Some host families may choose not to extend their au 
pair's program as a result. The Department of State nonetheless 
believes the benefits of greater protections for au pairs and host 
families will lead to an improvement in the public diplomacy benefits 
of the program. The Department of State requests comments on its 
consideration of the reliance interests of stakeholders.
    Implementation. Given the significant impact the proposed rule will 
have on host families and au pairs that have already signed a Host 
Family Agreement, the Department of State proposes to ``grandfather'' 
certain au pair programs that begin prior to the effective date of 180 
days from date of publication of the final rule. If the Department 
finalizes all or part of this proposal, au pair exchange programs with 
a Program Begin Date on the DS-2019 prior to 180 days from date of 
publication of the final rule are subject to the requirements of 22 CFR 
62.31 in effect at the time of the Program Begin Date on Form DS-2019. 
Any extensions of programs authorized prior to the effective date of 
180 days from date of publication of the final rule are also subject to 
the requirements of 22 CFR 62.31 in effect at the time of the Program 
Begin Date. Any program extensions authorized on or after the effective 
date of 180 days from date of publication of the final rule would be 
subject to the requirements set forth in this section.
    The Department of State also seeks comment on its proposal to delay 
the effective date of the final rule for 180 days upon publication of a 
final rule; as well as comment on any provisions of proposed Sec.  
62.31 that should be implemented sooner, (e.g., within 30 days of 
publication). By delaying implementation of certain requirements for 
approximately six months, sponsors would have time to adjust and plan 
for any changes that may affect their programs. Secondly, delaying the 
implementation of some regulatory provisions in new au pair regulations 
for approximately six months would provide sponsors with an opportunity 
to evaluate the impact of the proposed changes on their own exchange 
programs. This time would allow sponsors to make any necessary 
adjustments or changes to their program models to ensure compliance 
with the new regulations. Finally, delaying implementation of the new 
au pair regulations for approximately six months would ensure that 
current and future au pairs have a clear understanding of the program 
requirements and expectations, and that sponsors have time to 
communicate these changes effectively to host families and au pairs. 
This temporary delay would help to minimize confusion and ensure that 
the au pair program continues to provide high-quality child care and 
educational and cultural exchange experiences for families and au pairs 
alike.

Summary of NPRM

    In summary, the Department of State would modernize the au pair 
program and increase au pair protections by proposing the following new 
provisions:
    Section 62.31(a). The purpose paragraph introduces a part-time 
program (24-31 hours of child care per week) and a full-time program 
(32-40 hours per week).
    Section 62.31(c). As part of the program conditions, sponsors would 
be required to establish new standard operating procedures.
    Section 62.31(d). The au pair eligibility paragraph would require 
sponsors to ensure that au pairs are interviewed by both the sponsor 
and the host family. Au pairs would also be required to have a driver's 
license from their home country to demonstrate at

[[Page 74084]]

least one year of experience driving and be able to obtain a license in 
the host family jurisdiction, if required.
    Section 62.31(e). Sponsors would be required to confirm a host 
family placement prior to the au pair's departure from the home country 
by obtaining the signatures of the host family and au pair in a Host 
Family Agreement.
    Section 62.31(f). The au pair orientation provision would require 
sponsors to provide au pairs with pre-arrival information that covers 
compensation and benefits (including in-kind benefits); allowable 
deductions; maximum work hours; time off; child care duties; 
documenting child care hours; driving expectations; and, requirements 
for paying state and Federal taxes.
    Section 62.31(g). The au pair training paragraph requires sponsors 
to provide au pairs with child safety instruction and child development 
instruction, an online driving course, and information covering state 
and local driving laws including safety information.
    Section 62.31(h). The host family eligibility paragraph requires 
sponsors to ensure that host families are prepared to speak English 
daily and will not reside outside the U.S. for more than 30 days. 
Sponsors must also conduct criminal background checks on all host 
family household members 18 years of age or older.
    Section 62.31(i). The host family orientation provision would 
require sponsors to provide host families a copy of the Host Family 
Agreement, information on how to document weekly child care hours, and 
a print-out of the current page from the Internal Revenue Service's 
website on the topic of ``Taxation of Nonresident Aliens.''
    Section 62.31(j). This paragraph would formalize the current au 
pair and host family agreement and require both the au pair and host 
family to sign prior to the au pair departing from their home country, 
as well as identify an itemized list of fees (costs to host family and 
au pair); duties; weekly schedule; compensation; time off for weekends 
and vacation; educational component; room; in-kind benefits (e.g., cell 
phone, gym membership, car for personal use); and, appropriate and 
inappropriate au pair duties.
    Section 62.31(k). ``Au pair limitations and protections'' is a new 
provision under which sponsors would require host families to provide a 
home environment free from sexual harassment, exploitation, or any 
other form of abuse; to not use a nanny cam or take photos without 
prior and ongoing consent; to ensure the au pair is only responsible 
for the host family children; and, to provide the au pair 80 hours of 
paid time off and 56 hours of sick leave.
    Section 62.31(l). Rematch would require sponsors to report when an 
au pair is removed from the host family home, determine the au pair 
suitability to continue the program, and make an expedient, fair and 
good faith effort to find a new host family placement for suitable au 
pairs. Sponsors would be required to refund au pairs if unable to find 
a suitable rematch.
    Section 62.31(m). The ``Hours'' paragraph would require whether the 
au pair will be participating in a part-time or full-time program to be 
stated in the Host Family Agreement, prohibit overtime for child care 
except in limited exigent circumstances, and define when an au pair is 
providing child care.
    Section 62.31(n). The compensation provision would introduce a new 
four-tiered compensation chart based on the highest of the Federal, 
State, and local minimum wage. It further explains that au pairs would 
be compensated for the maximum number of hours in the part-time or 
full-time program and the extent to which deductions are permissible 
for room & board and in-kind benefits.
    Section 62.31(o). The educational component provision would be 
amended to eliminate the Educare program and offer new options in 
conjunction with in-person classes (e.g., online class, continuing 
education classes, and volunteering in their community).
    Section 62.31(r). The reporting requirements paragraph would add 
new requirements for sponsors to provide foreign agent information and 
price lists and an annual itemized program costs/fees list.
    Section 62.31(t). ``Relationship to state and local laws'' is a new 
provision that would provide that regulations in this section provide 
the exclusive requirements in certain matters and may not be 
supplemented by state or local law except as expressly provided 
therein.

Regulatory Analysis

Administrative Procedure Act

    The Department of State has historically determined that 
rulemakings regarding the Exchange Visitor Program involve a foreign 
affairs function (5 U.S.C. 553(a)) of the United States.\4\ However, 
due to Department of State's interest in seeking public comment on this 
rulemaking, the Department is soliciting comments during a 60-day 
comment period, to which it will respond in a final rule, should the 
Department of State choose to finalize all or part of this proposal.
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    \4\ Foreign governments seek to promote the ability of their 
foreign nationals to visit and study in the United States, and the 
Department of State establishes modified exchange programs pursuant 
to memoranda of understanding with foreign governments, based on the 
foreign policy needs of the United States. This practice reflects 
the flexibility needed for a program whose purpose is to promote the 
interests of the United States abroad and further ``peaceful 
relations between the United States and the other countries of the 
world.'' 22 U.S.C. 2451. In connection with that purpose, a major 
purpose of this rulemaking is to protect the health, safety, and 
welfare of foreign nationals while they are in the United States on 
their programs. Failure to protect the health, safety and welfare of 
these foreign nationals can have direct and substantial adverse 
effects on the foreign affairs of the United States.
---------------------------------------------------------------------------

Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by state, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million in any one year. Further, since the regulatory 
requirements in the proposed rule will not significantly or uniquely 
affect small governments, no further action by the Department of State 
is required under the Unfunded Mandates Reform Act of 1995.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of State has determined that this regulation will 
not have Tribal implications, will not impose substantial direct 
compliance costs on Indian Tribal governments, and will not preempt 
Tribal law. Accordingly, the requirements of Executive Order 13175 do 
not apply to this rulemaking.

Regulatory Flexibility Act/Executive Order 13272: Small Business 
Impacts

    As noted above in the APA section, the Department of State has 
historically determined that rulemakings regarding the Exchange Visitor 
Program involve a foreign affairs function (5 U.S.C. 553(a)) of the 
United States. The Department of State voluntarily provides the 
following information regarding the proposed rule's impact on small 
businesses.
    This regulation will affect the operations of fourteen sponsors 
designated by the Department of State to conduct exchange programs in 
the Au pair category. Each organization applied to the Department of 
State to become a designated sponsor of the au pair program, and as 
part of the ongoing administration, sponsors supply their latest 
financial year end statements every two years as part of an application 
for redesignation. Of the fourteen

[[Page 74085]]

sponsors designated in the Au pair category of the Exchange Visitor 
Program in 2019, all were small sponsors with annual revenues from the 
J-visa au pair program of approximately $15 million or less. In one 
recent year, 21,500 foreign nationals started new programs in the Au 
pair category. As the au pair program is currently under a new sponsor 
moratorium and a cap on the number of au pairs annually, we expect a 
similar number of au pairs to begin 12-month long exchange programs in 
the coming years.
    Many variable costs do not have a significant impact on small 
entities because they are proportionate to the sponsors' program size, 
and thus, revenues. For example, one au pair sponsor only sponsors six 
au pairs annually and the largest sponsor hosts approximately 10,500 au 
pairs annually.
    Sponsors will incur the following range of costs:
     Customize the Host Family Agreement for each au pair 
placement. The cost to input the host family specific information into 
a contract would take one employee one hour at a cost of $72.97 per 
placement x 21,500 au pair placement = a total aggregate cost of 
$1,568,855. The estimated range of costs for sponsors is $438 for the 
sponsor with the smallest program to $766,185 for the sponsor with the 
largest program.
     Prepare placement-specific information packages for au 
pairs and host families. The Department of State believes that a GS-9 
level staff member could compile, collect, and distribute 
electronically the required information in one hour per placement, or 
$31.50. For all 21,500 placements, the aggregate cost would be 
$677,250. The estimated range of costs for sponsors is $189 for the 
sponsor with the smallest program to $330,750 for the sponsor with the 
largest program.
     Vet foreign entity contracts. The Department of State 
estimates that it will require sponsor staff at the GS-9 level two 
hours to vet each foreign entity for a total of $71.62 per foreign 
entity. These costs will vary significantly among sponsors, based upon 
their recruiting patterns. The cost to the sponsor with one foreign 
entity will be $71.62. The cost to the sponsor with 51 foreign entities 
will be $3,652.62. For the entire sponsor community, it will cost 
$27,000.74 to annually vet all 377 foreign entities.
     Updating standard operating procedures to include the new 
requirements under program conditions--to update the seven standard 
operating procedures by one employee at $72.97 per hour, it would cost 
each sponsor $4,086 to formalize these standard operating procedures. 
The total cost for all sponsors would be $57,208.
     Updating the existing host family and foreign entity 
contract templates. It would take one employee at $72.97 per hour a 
total of 22 hours for a total of $1,605 per template.
     Updating sponsor orientation materials one-time based on 
new regulatory requirements. These additional fixed costs would take 
one employee at $72.97 per hour a total of 40 hours for a total of 
$2,919.
    Alternatives Considered. The Department of State considered not 
issuing a proposed rule, but small entities (i.e., sponsors) themselves 
have asked the Department of State for regulatory clarification about 
how the Federal regulation interacts with state and local law. The 
confusion currently created in the au pair program, once eliminated, 
may reduce costs for sponsors because they can make better business 
decisions about operations.
    The au pair regulations have not been updated since 2008, and there 
were several program administrative areas, such as au pair protections 
and increased educational stipends, that needed to be updated to 
modernize the au pair program and ensure that the program meets the 
purposes of the Exchange Visitor Program.

Executive Order 12866

    The Department of State has submitted this proposed rule to the 
Office of Information and Regulatory Affairs (OIRA), and OIRA has 
determined that this is an economically significant regulatory action 
per Executive Order 12866.
    The Department of State asserts that the foreign policy benefits 
from preserving this nationwide au pair program, providing for the 
safety of au pairs, and ensuring accountability of all stakeholders in 
the au pair program outweigh any additional costs imposed by this 
rulemaking. This section outlines new costs for the program. The costs 
of the new regulations are comprised of fixed and variable costs.
    For the cost calculations, the Department of State uses the hourly 
wage of mid-range GS-9 Federal workers for support services and the 
hourly wage of mid-range GS-14 Federal workers for those tasks 
requiring additional experience, such as writing standard operating 
procedures. The Department of State adds 40% of the GS-9 hourly wage to 
the base rate to include the cost of benefits (or $22.50 x 140% = 
$31.50). Similarly, the Department of State calculates the GS-14 hourly 
wage as $52.12 + $20.85 = $72.97.
Fixed Costs
    This regulation will impose total estimated new fixed costs of 
$8,610 for each of the fourteen designated au pair sponsors, or 
$120,540 in the aggregate. The Department of State estimates the size 
of the programs of the fourteen sponsors ranges from six exchange 
visitors to 10,500 exchange visitors starting new programs each year. 
The Department of State does not calculate additional costs to host 
families for au pairs who extend their programs as extending au pairs 
remain with their host families and most of the variable costs are 
associated with evaluating the suitability of the original au pair 
placement. The fixed costs are those that each sponsor must incur 
regardless of program size. Almost half the fixed costs will be 
incurred formalizing the seven standard operating procedures: (i) 
training of headquarters and field staff; (ii) contingency plans for au 
pairs removed from a host family; (iii) covering educational costs that 
host families fail to pay; (iv) allocation of non-income related cost 
of paid time off and sick leave; (v) rematching qualified au pairs to 
new placements; (vi) establish guidelines and circumstances for au pair 
to be removed from program; and (vii) process for responding and 
reporting to issues, concerns, or emergencies. As discussed below under 
``Program conditions'', to update the seven standard operating 
procedures by one employee at $72.97 per hour, it would cost each 
sponsor $4,086 to formalize these standard operating procedures. The 
total cost for all sponsors would be $57,208.
    Other fixed costs include updating existing host family and foreign 
entity contracts, as well as updating sponsor orientation materials. 
These additional fixed costs would take one employee at $72.97 per hour 
a total of 22 hours for a total of $1,605 per template and 40 hours to 
update orientation templates for a total of $2,919. Total fixed costs 
are $4,086 + $4,524 = $8,610 per sponsor, or $120,540 for all fourteen 
sponsors.
Variable Costs
    The Department of State estimates that the variable costs for 
sponsors per au pair placement will increase by $195. This includes the 
costs of criminal background checks for each adult in the host family 
home (average two per home) and to customize the Host Family Agreement 
and orientation materials for each placement. In the aggregate, the 
Department of State estimates variable costs to be $2,047,500 (10,500 
au pairs

[[Page 74086]]

x $195) for the largest sponsor. These costs do not have a significant 
impact on small entities because they are proportionate to the 
sponsors' program size, and thus, revenues. Sponsors will incur costs 
to customize Host Family Agreements to individual placements and to 
prepare placement-specific information packages for au pairs and host 
families. The smallest sponsor with six au pairs will have a variable 
cost of $1,170 (6 au pairs x $195). Another variable cost is associated 
with the need for sponsors to customize agreements with foreign 
entities and to vet them according to the new requirements. As a 
general matter, smaller sponsors utilize fewer foreign entities because 
they tend to recruit from fewer foreign countries.
    Host families would incur variable costs depending on the days 
needed per week to document hours of child care, with a maximum cost of 
$409.50 per host family annually, or aggregate costs of $8,804,250 (15 
minutes per week to fill out a timesheet for an estimated cost of (15 
minutes per week x 52 weeks = 13 hours x $31.50 = $409.50, or an 
aggregate of $409.50 x 21,500 host families = $8,804,250).
    Sponsor and host family new costs and transfers under this 
rulemaking are detailed as follows:
    Purpose (Sec.  62.31(a)). There are no new costs associated with 
this provision.
    Program designation (Sec.  62.31(b)). There are no new costs 
associated with this provision.
    Program conditions (Sec.  62.31(c)). This new paragraph on program 
conditions requires sponsors to formalize standard operating procedures 
and internal controls (to confirm the effectiveness of the procedures) 
that already should be part of their operations. For example, sponsors 
already assess whether they have sufficient resources to train 
headquarters and field staff to ensure regulatory compliance and the 
health, safety, and welfare of exchange visitors and the children in au 
pairs' care. They also already deal with the complications that arise 
when irreconcilable differences require au pairs to be removed from 
their current host family homes, such as the following: (1) ensuring 
the safety of au pairs who are awaiting rematches (and no longer live 
with a host family); (2) allocating among host families the funding of 
the educational component and non-cash benefits (i.e., paid time off 
and sick leave) when rematches occur; (3) specifying the steps for 
rematching au pairs, including ending programs of otherwise qualified 
au pairs; (4) identifying criteria determining whether au pairs are 
qualified for rematch; and (5) placement-related issues. It is 
estimated that formalizing each standard operating procedure would take 
a GS-14, Step 5 equivalent staff person eight hours, for a total of 56 
hours for all seven procedures. At $72.97 per hour it would cost each 
sponsor $4,086 to formalize these standard operating procedures. The 
total cost for all sponsors would be $57,208.
    The regulations at Sec.  62.31(c)(3) would establish a new 
requirement that sponsors annually vet and enter into contracts with 
foreign third parties that act on their behalf in the operation of 
their exchange programs. Since the regulations already impute to 
sponsors non-compliance by third parties acting on their behalf, it is 
likely that sponsors already vet foreign entities to ensure their 
suitability. They also are already required to enter into contracts 
with them. However, the Department of State is seeking public comment 
on these costs.
    In 2021, the size of the fourteen au pair programs ranged from five 
to nearly 10,500 exchange visitors. The number of foreign entities 
these sponsors utilized ranged from one to 51. Generally, the number of 
foreign countries from which sponsors recruit exchange visitors 
increases as the number of total exchange visitors increases. Three of 
the fourteen sponsors, however, do not follow that pattern, (i.e., they 
recruit small numbers from multiple countries), resulting in a higher 
costs per exchange visitor than those sponsors who cluster their 
recruitment. The cost, however, is minimal.
    The Department of State anticipates that sponsors will update their 
standard foreign entity contracts to ensure they conform with current 
regulations. Estimating four hours per contract attorney at $100 per 
hour, it will cost each sponsor $400 to update their current contracts.
    The Department of State estimates that it will require sponsor 
staff at the GS-9 level two hours to vet each foreign entity for a 
total of $71.62 per foreign entity. These costs will vary significantly 
among sponsors, based upon their recruiting patterns. The cost to the 
sponsor with one foreign entity will be $71.62. The cost to the sponsor 
with 51 foreign entities will be $3,652.62. For the entire sponsor 
community, it will cost $27,000.74 to annually vet all 377 foreign 
entities.
    Au pair program eligibility and suitability (Sec.  62.31(d)). 
Sponsors already must evaluate the eligibility and suitability of au 
pair program candidates. The slight changes in the information they 
must gather is insignificant as sponsors likely routinely update such 
checklists.
    Au pair placement (Sec.  62.31(e)). There are two primary 
clarifying regulatory changes to this paragraph. First, sponsors must 
evaluate the personal space of au pairs in the potential host family 
homes. The Department of State believes that sponsors already tour a 
potential host family home for a private bedroom when they interview 
the families, therefore the clarifying requirement of evaluating 
personal space will result in no additional cost to any party. Second, 
the current regulations set forth at 22 CFR 62.31(e)(5) already require 
sponsors to provide au pairs with information about the prospective 
host families and their schedules in a written agreement; and sponsors 
must provide host families with the au pairs' applications. The 
Department of State believes that a GS-9 level staff member could 
compile, collect, and distribute electronically the required 
information in one hour per placement, or $31.50. For all 21,500 
placements, the aggregate cost would be $677,250. It would cost the 
smallest sponsor that brings in five au pairs annually $157.50. It 
would cost the largest sponsor that brings in 10,500 au pairs $330,750.
    Au pair orientation (Sec.  62.31(f)). The regulations update the 
requirements for the existing pre-departure orientation. Sponsors most 
likely routinely reevaluate their orientation materials, so the cost of 
these minor changes is insignificant. However, there would be a new 
requirement for a post-arrival orientation. Sponsors already meet with 
new au pairs and provide them introductory information based on the 
current regulatory requirements at 22 CFR 62.10(c). Since the proposed 
regulation identifies certain required topics, however, there will be a 
cost associated with incorporating the new provisions into standard 
sponsor materials. The Department of State estimates these new 
requirements can be completed in eight hours by a staff member at the 
GS-14 level. $72.97 per hour x 8 hours = $583.76 per sponsor or 
$8,172.64 for all fourteen sponsors.
    Au pair training (Sec.  62.31(g)). The new regulations do not 
modify the current au pair training requirements except that au pairs 
who will be required to drive must take on-line or in-person classes to 
become familiar with U.S. driving customs and safety. Sponsors also 
must provide au pairs with jurisdictionally-specific driving 
regulations. Since this information is readily available online, the 
Department of State believes this new requirement will not have a 
substantial cost. The Department

[[Page 74087]]

estimates online driving courses cost will vary, for example, from $12 
in California \5\ to $45 in New York.\6\
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    \5\ See https://www.driverseddirect.com/california-online-drivers-ed.aspx?ProductID=33&STATE=CA&DC=wow27off&hc=A&source=GOOGLE_DE-NEWBTW_03242022RSAMAXPIN_HCA_DCwow27off&gclid=EAIaIQobChMIifLO5bCg_gIVTBbUAR0VGwS5EAAYAiAAEgJYkvD_BwE.
    \6\ See https://www.idrivesafely.com/new-york/5-hour-pre-licensing-online.
---------------------------------------------------------------------------

    Host family selection (Sec.  62.31(h)). Requiring criminal 
background checks for adult members living in the host family home is a 
new requirement. It is likely that there are at most two adults living 
in most homes. County criminal history searches are the most common 
form of criminal background check. The Department estimates a county 
court criminal background check will cost $15-$20, and a statewide 
criminal background check will cost $10-$20. This type of report 
typically includes address history, age, misdemeanors, felonies, 
offense date, case number, arrest history, and offense description.\7\ 
This is a variable cost that sponsors can pass through to the host 
families. If sponsors chose not to pass through the cost, the cost to 
sponsors is calculated as follows: Assuming an average cost of $20 per 
background check, the additional cost would be $40 per placement. With 
21,500 au pairs, the aggregate cost would be $860,000. Since this is a 
variable cost, it will not have a significant impact on smaller 
sponsors.
---------------------------------------------------------------------------

    \7\ See https://www.criminalwatchdog.com/faq/how-much-does-background-check-cost; https://www.sentrylink.com/web/criminal-check.action?gclid=EAIaIQobChMIt_zk5MWL_gIVK__jBx0lYQmgEAAYASAAEgIsNfD_BwE.
---------------------------------------------------------------------------

    Host family orientation (Sec.  62.31(i)). Sponsors will incur a 
cost to prepare materials to reflect new orientation requirements and 
to train field staff on conducting the sessions. The Department of 
State estimates that preparation of these materials could take 16 hours 
by a staff member at the GS-9 level combined with eight hours by a 
staff member at the GS-14 level: ($31.50/hr x 16 hr) + ($72.97/hr x 8 
hr) = $1,087.76 per sponsor. The Department of State estimates that 
training materials could be developed in eight hours by a staff member 
at the GS-9 level combined with four hours by a staff member at the GS-
14 level, for a total of $578.36. Together, the development of 
orientation and training materials could cost $1,666.12 per sponsor, or 
$23,325.68 for all 14 sponsors.
    Host Family Agreement (Sec.  62.31(j)). Sponsors must confirm au 
pair/host family placements by obtaining the signatures of both host 
families and au pairs on a Host Family Agreement prior to au pairs' 
departure from their home countries. This rulemaking requires sponsors 
to update their current agreements by including both new required 
general information and placement-specific information. An average 
hourly fee for a contract attorney is $50, and the Department of State 
doubles this rate to account for the location of sponsor organization 
in higher cost areas. The Department of State estimates contract 
attorneys could modify existing Host Family Agreements in 16 hours, for 
a non-recurring cost per sponsor of $1,600 for drafting initial 
agreements, or $22,400 in the aggregate. Once sponsors engage counsel 
to update their Host Family Agreements to include the new required 
information, they will need to customize the agreements for each new 
placement. The Department of State estimates sponsors will spend two 
hours. It is estimated that customizing the agreements and obtaining 
required signatures would take a GS-9 Step 5 equivalent staff person 
two hours, for a total of $63.00 per placement. The aggregate cost for 
the 14 sponsors and estimating 21,500 new au pairs each year is 
estimated to be $1,354,500 per year. Of course, each sponsor's portion 
of this total is driven by their program sizes, with the least impact 
falling on small sponsors.
    Au pair limitations and protections (Sec.  62.31(k)). It is unknown 
whether host families will incur additional costs by having to obtain 
alternative child care when au pairs are using paid time off or sick 
leave. They may incur additional costs if their child care needs exceed 
program maximum hours each week. The costs incurred for exigent 
circumstances that require overtime are discussed below under 
``Hours''. Costs to host families for one-off days are unknown as host 
families may have family members or alternative caregivers who can 
provide child care if the au pair is on sick leave. The Department of 
State seeks comment on these potential costs.
    Rematch (Sec.  62.31(l)). The Department of State has implemented a 
new refund requirement for sponsors who are unable to rematch au pairs 
who are eligible to continue on program if their first host family 
matches are not successful. This new requirement is designed both to 
provide a greater incentive for sponsors to make good initial matches 
and to provide an additional protection for au pairs who, through no 
fault of their own, are unable to continue on the program. Sponsors 
that are unable to find alternative host families for au pairs that are 
deemed qualified for rematching (i.e., the rematch was required through 
no fault of the au pairs) may face significant costs. The new 
regulation requires sponsors to refund au pairs who are qualified for 
rematch, but for whom their sponsors are unable to find new suitable 
host families. Refunds range from 25 percent to 75 percent of all fees 
au pairs paid to both sponsors and foreign third parties, depending 
upon the proportion of the duration of the program the au pairs were 
able to complete. Because qualified au pairs who are awaiting a rematch 
will continue to need room and board even though they are not being 
paid for child care, the new regulations also require sponsors to 
ensure that au pairs have lodging and food during this transition 
period.
    The Department is seeking public comment on what specific costs 
sponsors are likely to incur in the event of a rematch.
    Hours (Sec.  62.31(m)). Sponsors must collect documentation from 
host families that records the weekly hours and leave of au pairs. The 
Department of State estimates it will take each sponsor two hours to 
design the form for collection of this data. Each sponsor will incur 
the fixed cost of $63, with the aggregate cost for all sponsors being 
$882. The Department of State estimates no additional time to collect 
such documentation, as the collection can be part of the monthly 
monitoring process.
    Host families would be required to document the weekly hours of the 
au pair. The Department of State estimates it will take each host 
family no more than 15 minutes per week to fill out a timesheet for an 
estimated cost of: 15 minutes x 52 weeks = 13 hours x $31.50 = $409.50, 
or an aggregate of $409.50 x 21,500 host families = $8,804,250.
    Au pairs would not be permitted to provide more than 40 hours of 
child care per week, except when requested, approved, and documented 
through the sponsor. If host families need infrequent exceptions and 
ask the au pair to work overtime, host families would be required to 
pay overtime rates to the au pair and notify the sponsor in writing. 
The overtime rate must include any overtime premium due under 
applicable Federal, state, or local law for the host family 
jurisdiction. This cost varies per jurisdiction.
    Compensation (Sec.  62.31(n)). The proposed regulations will 
require some host families to pay a significantly higher wage than the 
Federal minimum wage that is currently required. Some host families 
already do pay higher compensation based on the skill level of the au 
pair or to cover higher living

[[Page 74088]]

expenses. Host families under the current regulations pay an estimated 
$10,140 ($195 a week x 52 weeks) to $15,000 annually in compensation 
per au pair per year across the United States. This does not include 
program fees and other in-kind benefits which are additional expenses 
to host families.
    The proposed annual host family compensation increase in transfers 
are determined based on the four-tiered wage formula. After subtracting 
the maximum for meal and lodging credits of $6,790, (assuming that the 
deduction is permissible each day and week of the year), host families 
would pay an annual estimate based on the following tiered levels per 
au pair: Tier 1--$9,850.00 (40 hours/week x 52 weeks = 2,080 hours at 
$8/hour = $16,640-$67,906,790 meals/lodging = $9,850), Tier 2--
$18,170.00, Tier 3--$24,410.00, and Tier 4--$30,650.00. Any overtime 
expenses for exigent circumstances are discussed below under hours.
    Currently only two states, California and Washington, and the 
cities of Washington, District of Columbia, and Denver, Colorado, would 
fall under Tier 4. There are currently 2,947 au pairs in California, 
1,141 au pairs in Washington, 378 in the District of Columbia, and 260 
in Denver, Colorado identified as Tier 4, or a total of 4,726 au pairs 
out of the annual estimated 21,500 au pairs--or an estimated 22% 
(4,726/21,500) of au pairs living in Tier 4. Therefore, the total 
compensation increase for Tier 4 is: ($30,650 (the proposed wage) -
$10,140 (the current wage) = $20,510 x 4,726 (22% of 21,500) = 
$96,930,260 million increase for Tier 4 au pairs.
    For a sampling of Tier 3, we are using an estimate of 25 percent of 
au pairs that fall within this tier. The transfer payment would be for 
5,375 au pairs out of 21,500 and an increase of $24,410-$10,140 (the 
current wage) = $14,270 x 5,375 = $76,701,250.
    For a sampling of Tier 2, we are using an estimate of 25 percent of 
au pairs that fall within this tier. The transfer payment would be for 
5,375 au pairs out of 21,500 and an increase of $18,170-$10,140 (the 
current wage) = $8,030 x 5,375 = $43,161,250.
    There are a number of states in which the Federal minimum wage is 
still equal to the highest applicable wage and any increase would be 
minimal as a result of this rulemaking. As an estimate, 28 percent of 
au pairs identified may fall in Tier 1, or a total of 6,024 au pairs 
out of 21,500) of au pairs living in Tier 1 would lead to a transfer 
decrease from host families of $9,850-10,140 (current wage for 45 hours 
per week) = -$-290 x 28% of 21,500 = $-1,746,960.
    Therefore, the total increase in transfers from host families to au 
pairs is estimated to be $215,045,800 (sum of the four tiers' 
transfers).
    Educational component (Sec.  62.31(o)). The educational stipend of 
$500 for an au pair to take college level classes has not been updated 
since 1993. Sponsors have always been responsible for tracking whether 
host families pay the educational stipend and that au pairs complete 
the required coursework and/or community service. There is no 
additional cost for sponsors as a result of the rule change. However, 
sponsors will require host families, to pay a higher educational 
stipend of $1,200, an increase of $700 than currently required. The 
increased cost to 21,500 host families x $700 increase would be 
$15,050,000.
    Monitoring (Sec.  62.31(p)). Sponsors already must monitor their au 
pair placements. There is no significant change to the monitoring 
provisions that would result in any significant cost increase for 
sponsors.
    Duration and extensions (Sec.  62.31(q)). The new regulation does 
not impose any new requirements.
    Reporting requirements (Sec.  62.31(r)). There are two changes to 
the current reporting requirements. First, sponsors must submit 
annually the following current schedules: a listing of all fees they 
may charge au pair applicants/participants to participate in the 
program and listings on a country-specific basis of all fees foreign 
third parties acting on their behalf may charge au pair applicants/
participants to participate in the program. In support of these 
listings, sponsors must provide website links to both the sponsors' and 
all their foreign entities' websites on which such fees are posted. 
Additionally, sponsors must inform the Department of State of any 
changes in the identity of or information about the foreign entities 
they engage to assist in their programs. The Department of State 
presumes that both sponsors and foreign entities already maintain such 
fee schedules and that there is little churn in the identity of the 
third parties with which sponsors work. Accordingly, the Department of 
State estimates that the cost of complying with these new requirements 
is de minimis.
    Repeat participation (Sec.  62.31(s)). The new regulation does not 
impose any new requirements. The Department of State asserts that the 
foreign policy benefits from preserving a nationwide au pair program, 
providing for the safety of au pairs, and ensuring accountability of 
all stakeholders in the au pair program outweigh any additional costs 
imposed by this rulemaking.

Summary of Benefits, Costs and Transfers

    To summarize, the annual increase in transfers from host families 
to au pairs is estimated to be $230,095,800 (sum of the four tiers' 
transfers plus increased educational expenses). One-time costs are 
estimated to be $142,940, and recurring annual costs are estimated to 
be $15,923,673, of which $8.9 million are paperwork burden costs 
incurred by the program's 21,500 host families. The primary benefits of 
this rulemaking are reduced confusion about the relationship between 
the Federal au pair regulations and state and local law, which will 
help to increase participation; a number of safeguards for au pairs and 
host families that may also increase participation and ultimately 
benefit sponsors; and, preserving a nationwide program that advances 
the foreign policy objectives of the Exchange Visitor Program.
    The Department of State notes that the increased costs and 
transfers, especially associated with compensation and educational 
expenses, could result in a decline in host families in the au pair 
program. Host families in regions with higher minimum wage rates may 
seek alternative child care options if the compensation costs outweigh 
the benefit of a cultural exchange program for their family. This may 
also result in a reduction of au pairs annually coming to the United 
States on a J visa. The Department of State requests comment on the 
extent to which these increased costs and transfers may deter host 
families from participating in the au pair program.
    The Department of State has chosen to analyze the impact of this 
proposed rule over a five-year time horizon. While this proposed 
regulation stipulates that the Department of State will update the 
hourly pay rates in the four-tiered au pair compensation chart in 
response to changing economic conditions not less than every three 
years, the Department is unable to forecast economic conditions at this 
time, and therefore assumes that the compensation tiers will remain the 
same for at least the next five years. The Department of State is 
requesting comment on this assumption. The below table outlines the 
total discounted (at 3% and 7%) and annualized costs and transfers over 
the analytic period:

[[Page 74089]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Year 1                   Year 2                    Year 3             Year 4             Year 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Costs................................        $16,066,613  $15,923,673...................        $15,923,673        $15,923,673        $15,923,673
Annual Transfers............................        230,095,800  230,095,800...................        230,095,800        230,095,800        230,095,800
Total Costs (3%)............................         73,064,536  Annualized (3%)...............         15,953,975  .................  .................
Total Transfers (3%)........................      1,053,771,389  Annualized (3%)...............        230,095,800  .................  .................
Total Costs (7%)............................         65,423,792  Annualized (7%)...............         15,956,254  .................  .................
Total Transfers (7%)........................        943,438,209  Annualized (7%)...............        230,095,800  .................  .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

Executive Order 12988

    The Department of State has reviewed this rulemaking in light of 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burdens.

Executive Orders 12372 and 13132--Federalism

    A rule has federalism implications under Executive Order 13132 if, 
inter alia, it has ``substantial direct effects on the distribution of 
power and responsibilities among municipalities, states, and the 
federal government.'' 64 FR 43244. While this proposed rule 
memorializes the Department of State's view of the distribution of 
power and responsibilities in this area, the Department of State 
recognizes that section 4 of Executive Order 13132 specifically 
provides for notice and an opportunity to participate for affected 
State and local officials. Accordingly, even though the Department of 
State does not believe that it is required to consult with states or 
local governments under Executive Order 13132 because the proposed rule 
does not alter the basic State-Federal scheme established under the 
statutes that created the Exchange Visitor Program, the Department of 
State welcomes comments on this proposed rulemaking from state and 
local governments, in order to improve the administration of the au 
pair program and to maximize stakeholder input. Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities does not apply to this regulation.

Paperwork Reduction Act

    The Department of State submitted to the Office of Management and 
Budget (OMB), for review and approval, the reporting and recordkeeping 
requirements inherent in this rulemaking. This proposed rule requires 
new collection of information by sponsors.
    The information collection requirements contained in this proposed 
rule are described pursuant to the Paperwork Reduction Act and OMB 
Control Number 1405-0147, Form DS-7000, which requires collection of 
additional information for the Exchange Visitor Program. As part of 
this rulemaking, the Department of State is seeking comment on the 
administrative burden associated with modifying the collection of 
information.
    This is an expansion of an information collection utilized by the 
Bureau of Educational and Cultural Affairs in its administration and 
program oversight of the Exchange Visitor Program (J-Visa) under the 
provisions of the Mutual Educational and Cultural Exchange Act, as 
amended.
    (1) Type of Information Collection: Revision.
    (2) Title of the Form/Collection: Recording, Reporting, and Data 
Collection Requirements under 22 CFR part 62.
    (3) Agency form number: DS-7000.
    (4) Affected public: This information collection will require 
recordkeeping, disclosures to host families, and reporting by 
designated sponsors.
    (5) Change to information collected by the Department of State: The 
Department of State is proposing changes to recordkeeping and reporting 
requirements for sponsors:
     Sponsors will update each host family agreement to include 
required disclosures between the exchange visitor and host family 
(proposed 62.31(j)).
     Sponsors will require host families to document actual 
hours worked by the au pair and provide those records to the sponsor 
(proposed 62.31(m)). Host families would be required to document the 
weekly hours of the au pair in a timesheet.
     Sponsors will report new information to the Department of 
State annually, including: a listing of all fees they may charge au 
pair applicants/participants to participate in the program and listings 
on a country-specific basis of all fees foreign third parties acting on 
their behalf may charge au pair applicants/participants to participate 
in the program. In support of these listings, sponsors must provide 
website links to both the sponsors' and all their foreign entities' 
websites on which such fees are posted (proposed 62.31(r)).
     Sponsors will maintain records of business license, 
bankruptcy, previous experience, and notarized recent financial 
statements for overseas third parties (proposed 62.31(c)(3)(ii)).
     Sponsors must conduct and document a host family 
orientation session for all adult family members. Sponsors must provide 
to the host family copies of the signed and dated Host Family 
Agreement, the Department of State's Exchange Visitor Program 
regulations, brochures, and advisory letters regarding the au pair 
program, and a print-out of the current page from the Internal Revenue 
Service's website on the topic of ``Taxation of Nonresident Aliens'' 
(proposed 62.31(i)).
    (6) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The total 
number of respondents for the au pair are the fourteen organizations 
designated by the Department of State at the time of this rulemaking to 
conduct the au pair exchange program activities. The estimated hour 
burden per response for preparing the host family agreement (62.31(j)) 
is 2 hours. The estimated hour burden per response for documenting the 
au pair child care hours (62.31(m)) is 2 hours. The Department of State 
estimates it will take each host family no more than 15 minutes per 
week or 13 hours per respondent to fill out a timesheet. The estimated 
hour burden per response for annual reporting to the Department of 
State (62.31(r)) is de minimus. The estimated hour burden per sponsor 
for maintaining records on the foreign third party (62.31(c)(3)) is 54 
hours. The estimated hour burden per sponsor per response for the host 
family orientation disclosures (62.31(i)) is 24 hours. In sum, the 
annual burden is estimated to be an additional 82 hours per respondent 
(sponsor). The Department of State invites public comment on these 
estimates.
    (7) An estimate of the total annual public burden (in hours) 
associated with the collection: The total estimated annual hour burden 
associated with this collection is 280,648 hours (82 hours per sponsor 
x 14 sponsors + 13 hours per host family x 21,500 host families).
    (8) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual

[[Page 74090]]

cost burden associated with this collection of information is 
$8,845,057.
    The Department of State seeks public comment on:
     Whether the collection of information is necessary for the 
proper performance of the functions of the Department of State, 
including whether the information will have practical utility;
     The accuracy of the Department of State's estimate of the 
burden of the collection of information, including the validity of the 
methodology and assumptions used;
     The quality, utility, and clarity of the information to be 
collected; and
     How to minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, (e.g., 
permitting electronic submission of responses).

List of Subjects for Part 62

    Cultural exchange programs, Reporting and recordkeeping 
requirements.

    Accordingly, the Department of State proposes to amend 22 CFR part 
62 as follows:

PART 62--EXCHANGE VISITOR PROGRAM

0
1. The authority citation for part 62 is revised to read as follows:

    Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 
1431 et seq.; 22 U.S.C. 2451 et seq.; 22 U.S.C. 2651(a); Pub. L. 
105-277, Div. G, 112 Stat. 2681 et seq.; Reorganization Plan No. 2 
of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 
CFR, 1978 Comp. p. 168; Pub. L. 104-208, Div. C, 110 Stat. 3009-546, 
as amended; Pub. L. 107-56, 416, 115 Stat. 354; and Pub. L. 107-173, 
116 Stat. 543.

0
2. Revise Sec.  62.31 to read as follows:


Sec.  62.31  Au pairs.

    (a) Purpose. The purpose of the Au pair category is to provide 
foreign nationals the opportunity to live with and participate directly 
in the home life of an American host family, provide child care, 
complete an educational component, and participate in cultural 
activities. Au pairs may enroll in either a part-time program (24-31 
hours per week) or a full-time program (32-40 hours per week).
    (b) Program designation. The Department of State may, in its sole 
discretion, designate bona fide programs satisfying the objectives set 
forth in paragraph (a) of this section and having the organizational 
capacity to successfully administer an au pair exchange program.
    (c) Program conditions. Sponsors designated by the Department of 
State to conduct au pair exchange programs must:
    (1) Establish standard operating procedures for headquarters and 
field staff (e.g., local and regional coordinators), contractors, and 
third parties designed, at a minimum, to achieve the following goals 
and internal controls:
    (i) Provision of sufficient resources for and training of 
headquarters and field staff to ensure both regulatory compliance and 
the health, safety, privacy, and welfare of au pairs and the children 
in their care;
    (ii) Amendment to or termination of the Host Family Agreement in 
the event an au pair or host family requests a rematch;
    (iii) Development of contingency plans covering au pairs at any 
time they are not living with a host family, (e.g., during the rematch 
process and following removal from one home and prior to a new 
placement and/or prior to departing the United States), that at a 
minimum, describe the following conditions:
    (A) Where au pairs live and who is responsible for providing living 
arrangements and food;
    (B) Who is responsible for transportation costs for moving an au 
pair to a different geographic location, if necessary; and
    (C) That the au pair is not responsible for costs associated with 
paragraphs (c)(1)(iii)(A) and (B) of this section.
    (iv) Development of contingency plans covering funding of the 
educational component when a host family has or has not paid any or all 
of an educational stipend of a departing au pair, when an arriving or 
departing au pair has or has not received any or all of the educational 
stipend, and when the arriving or departing au pair has or has not 
completed any or all of the educational requirement.
    (v) Establish the allocation of the non-income-related cost of paid 
time off and/or paid sick leave for au pairs when a host family has/has 
not given a departing au pair some or all of paid leave, and an 
arriving/departing au pair has/has not taken any or all of paid leave.
    (vi) A process for rematching qualified au pairs to new placements, 
including for ending programs of au pairs for whom a new placement 
cannot be arranged;
    (vii) Establish guidelines and identify circumstances and behaviors 
that indicate that an au pair is not qualified to remain on program and 
when the au pair's program must be terminated;
    (viii) Establish a process for responding to issues, concerns, or 
emergencies revealed during routine monitoring or on an ad hoc basis.
    (2) Require that all local coordinators authorized to act on the 
sponsor's behalf in both routine and emergency matters:
    (i) Live within one hour's driving time from all placements for 
which they are responsible;
    (ii) Do not have a family or work connection with the host families 
for whom they are responsible;
    (iii) Be responsible for no more than 15 placements if they work 
with the program for fewer than 32 hours per week (i.e., part-time); 
and
    (iv) Be responsible for no more than 30 placements if they work 
with the program for 32-40 hours per week (i.e., full-time).
    (3) A sponsor that engages third parties, as defined in Sec.  62.2, 
that operate outside the United States (i.e., foreign third party) to 
act on their behalf in the administration of its au pair program will 
be held accountable by the Department of State for the actions of those 
foreign third parties and must:
    (i) Annually execute a written agreement that outlines the 
obligations and full relationship between the sponsors and such third 
parties on all matters involving fulfilling the core programmatic 
functions of screening and orientation that may be conducted outside 
the United States; including descriptions of all the services and 
associated costs that it may charge applicants/au pairs, including any 
recruitment fees charged prior to official acceptance into the program, 
before and during their programs;
    (ii) Annually review and maintain the following documentation for 
potential or existing foreign entities on the Foreign Entity Report set 
forth in paragraph (r) of this section:
    (A) Proof of business licensing and/or registration to enable them 
to conduct business in the jurisdiction(s) where they operate;
    (B) Disclosure of any previous bankruptcy and of any pending legal 
actions or complaints against such an entity on file with local 
authorities;
    (C) Summary of previous experience conducting J-1 Exchange Visitor 
Program activities;
    (D) A copy of the sponsor-approved advertising materials the 
foreign entities intend to use to market the sponsors' programs 
(including original and English translations); and
    (E) A copy of the foreign entity's notarized recent financial 
statements.

[[Page 74091]]

    (4) Draft and implement standard operating procedures and internal 
controls to ensure that foreign entities comply with the terms of such 
agreements.
    (5) Solicit from host families and au pairs information for 
reporting requirements under this section (including but not limited to 
those identified in paragraph (r) of this section).
    (d) Au pair eligibility. (1) In addition to satisfying the 
requirements of Sec.  62.10(a)(1), sponsors must demonstrate that au 
pairs:
    (i) Are between the ages of 18 and 26 as of the program begin date 
listed on Form DS-2019 (i.e., au pairs may turn 27 during an initial 
program and still qualify for an extension);
    (ii) Are secondary school graduates, or equivalent;
    (iii) Are proficient in spoken English and able to seek aid or 
assistance in medical or other emergencies as evidenced by a report of 
a personal interview conducted in English by the sponsor;
    (iv) Are capable of fully participating in the program as 
documented by a report (with English translation) from a licensed 
physician that the applicant satisfactorily completed a physical exam 
(completed no more than 45 days prior to execution of the contract by 
the au pair and the host family) including, among other things proof of 
the following conditions:
    (A) Are fully vaccinated pursuant to the current recommendations of 
the Advisory Committee for Immunization Practices (see, e.g., https://www.cdc.gov/vaccines/schedules/downloads/adult/adult-combined-schedule.pdf); and
    (B) Are free from active or latent tuberculosis demonstrated 
pursuant to a tuberculosis test currently approved by the Food and Drug 
Administration or a chest x-ray.
    (v) Are interviewed both by the sponsor and the host family;
    (vi) Demonstrate good character, as evidenced by three, non-family 
related personal or employment references (with English translations) 
and a criminal background check report or its recognized equivalent 
(with English translation); and
    (vii) Demonstrate suitability to be an au pair, as evidenced by a 
personality profile (with English translation) that is based upon a 
psychometric test designed to measure differences in characteristics 
among applicants against those characteristics considered most 
important to successfully participate in the au pair program.
    (2) For au pairs who will be placed with host families where 
driving is a requirement as written in the Host Family Agreement:
    (i) Possess an active driver's license from their home country 
issued at least one year before the program begin date; and
    (ii) Be able to obtain an international or jurisdictional driver's 
license if required by the jurisdiction in which the au pair is placed.
    (3) Are not accompanied by a spouse or dependent while on program.
    (e) Au pair placement. Sponsors must demonstrate they have secured 
a host family placement prior to the au pair's departure from the home 
country or before being placed with a new host family (i.e., rematch) 
by obtaining the signatures of the host family and au pair on a dated 
Host Family Agreement.
    (1) Sponsors shall not:
    (i) Place an au pair with a host family unless a head of 
household(s) or other responsible adult will remain in the home for the 
first three days following the au pair's arrival;
    (ii) Place an au pair with a host family having a child aged less 
than three months unless the au pair and host family have specifically 
agreed in writing that that a parent or other responsible adult will be 
primarily responsible for the infant at all times;
    (iii) Place an au pair with a host family having any children under 
the age of two unless the au pair has at least 200 hours of documented 
infant child care experience no later than the program begin date.
    (iv) Place an au pair with a host family having a special needs 
child, as so identified by the host family, unless the au pair has 
specifically identified his or her prior experience, skills, or 
training in the care of special needs children and the host family has 
reviewed and acknowledged in writing the au pair's prior experience, 
skills, or training so identified;
    (v) Place an au pair with more than one host family to provide 
child care outside of the primary host family; and
    (vi) Place an au pair with a host family that is not capable of 
providing a comfortable and nurturing home environment free from sexual 
harassment, exploitation, or any other type of abuse. Sponsors must 
ensure that the home is safe, comfortable and clean; and that the au 
pair has a private and lockable bedroom with a bed that is neither 
convertible nor inflatable in nature, and has adequate storage space 
for clothes and personal belongings; a private and lockable bathroom; 
and reasonable, unimpeded access to the outside of the house during 
non-child care hours, while the au pair is on leave, and in the event 
of a fire or similar emergency.
    (2) Before finalizing an au pair placement, sponsors must:
    (i) Provide the host family with the prospective au pair's complete 
application, including all references and a copy of the sponsor's 
interview report;
    (ii) Provide the au pair with a description of the placement, 
including at a minimum:
    (A) Short biographical description of host family members, 
including age and educational level;
    (B) Information about host family work hours and children's school 
attendance;
    (C) A description of the area in which the host family lives; and
    (D) Any additional information necessary to reasonably inform the 
au pair about the family dynamic.
    (f) Au pair orientation--(1) Pre-departure materials. In addition 
to the requirements in Sec.  62.10(b), sponsors must provide au pairs 
the following information before they depart from their home countries:
    (i) A copy of the Host Family Agreement with dates and all 
signatures;
    (ii) A detailed summary of travel arrangements for the au pair to 
travel to and from the au pair's home country and the host family's 
home in the United States;
    (iii) An explanation of requirements for au pair to purchase a 
round-trip ticket or obtain and bring on program a pre-paid return-
flight airline voucher of a value equal to the cost of out-bound 
flight;
    (iv) A copy of Department of State regulations governing the au 
pair's participation in the Exchange Visitor Program, welcome brochure, 
exchange visitors' rights and protections trifold, and advisory letter 
regarding the au pair program; information on the educational and 
cultural exchange goals of the program (including educational 
requirement and allowance); and
    (v) Information on compensation and benefits (including in-kind 
benefits such as cell phone, gym membership, or access to personal 
car), allowable deductions, maximum work hours, time off; child care 
duties (including documenting child care hours); and requirements for 
paying state and Federal taxes.
    (2) Post-arrival orientation. In addition to the requirements in 
Sec.  62.10(c), sponsors must provide and document the au pairs' 
participation in a post-arrival orientation that covers, at a minimum, 
the following topics:
    (i) The purpose and intent of the au pair program as an educational 
and

[[Page 74092]]

cultural exchange program that assists the Department of State in 
achieving U.S. foreign policy objectives and the au pair's role in an 
educational and cultural exchange program;
    (ii) Sponsor and host family expectations of au pair behavior, 
including unacceptable actions; sponsor rules; rematch criteria, the 
specific family's guidance on the use of information about or 
photographs of the family members or family home; and the relevant 
portions of the Exchange Visitor Program regulations (e.g., monitoring, 
sponsor support, permitted duties);
    (iii) Sponsor resources available to assist au pairs in fulfilling 
the educational requirement and cultural goals of their program;
    (iv) Information regarding paying State and Federal income taxes, 
withholding obligations, and how to seek tax preparation and filing 
assistance in the placement community; and
    (v) Sponsor headquarter and local coordinator contact information, 
including the sponsor's 24/7 emergency contact information.
    (g) Au pair training. Prior to placing an au pair in a host family 
home, sponsors shall provide the au pair with, and compensate the au 
pair for, the following required training:
    (1) A minimum of eight hours of child safety instruction of which 
no less than four hours will focus on infants;
    (2) A minimum of 24 hours of child development instruction of which 
no less than four hours will focus on children under the age of two; 
and
    (3) For au pairs whose duties enumerated in the Host Family 
Agreement require driving, an online or in-person driving instruction 
course designed to introduce international drivers to U.S. driving 
customs; and information covering state and local driving laws 
(including safety information on, e.g., child car seats, seat belts, 
and dangers and penalties for driving while intoxicated).
    (h) Host family eligibility. Each sponsor must ensure that host 
families treat this program as an educational and cultural exchange and 
meet the following eligibility requirements prior to signing a Host 
Family Agreement with an au pair:
    (1) Head of household(s) are U.S. citizens or lawful permanent 
residents;
    (2) Head of household(s) are fluent in spoken English and are 
prepared to speak English with the au pair on a daily basis;
    (3) No member of the immediate or extended host family is a 
relative of the au pair;
    (4) All adult members living in the host family home have been 
personally interviewed by a sponsor representative;
    (5) Every permanent member of the host family household 18 years of 
age or older, and any member of the host family household who will turn 
18 during the au pair's program, and any adult who joins the household 
for more than 30 days demonstrates good character by:
    (i) Undergoing a criminal background check (which must include a 
search of the Department of Justice's National Sex Offender Public 
Registry) at the time of the host family's application or promptly 
after joining the household, as appropriate; and
    (ii) Providing at least one employment, if employed, and one 
personal character reference.
    (6) The host family has adequate financial resources to undertake 
all the host family responsibilities specified in the regulations;
    (7) The host family commits not to reside outside of the United 
States and its territories, for longer than a cumulative total of 30 
days or at a domestic location within the United States that is more 
than one hour's drive from a local coordinator during the au pair's 
program;
    (8) The host family commits to promptly report to the sponsor any 
material changes in the family composition, changes in circumstances 
that could create stress or anxiety within the family (e.g., death, 
divorce, loss of job); and any host parent arrests or moving traffic 
violations.
    (i) Host family orientation. (1) After a Host Family Agreement has 
been fully executed and prior to an au pair's arrival at a host family 
home, sponsors must conduct and document a host family orientation 
session for all adult family members. At a minimum, the sponsor must 
provide copies of the following documents:
    (i) A copy of the signed and dated Host Family Agreement;
    (ii) A copy of Department of State's Exchange Visitor Program 
regulations, brochures, and advisory letters regarding the au pair 
program;
    (iii) A print-out of the current page from the Internal Revenue 
Service's website on the topic of ``Taxation of Nonresident Aliens.''
    (2) The sponsor should include, at a minimum, discussions on the 
following topics, giving the host family the opportunity to ask 
questions to ensure they understand their obligations and the 
regulations governing the placement:
    (i) The purpose and intent of the au pair program as an educational 
and cultural exchange program that assists the Department of State in 
achieving U.S. foreign policy objectives; the role of host families in 
achieving that purpose; and ongoing monitoring and reporting 
requirements;
    (ii) All topics listed in the Host Family Agreement, including the 
mandatory family day conference organized by the sponsor.
    (iii) The process and schedule for documenting and submitting the 
au pair's child care hours, maximum hours of child care, and the 
requirement to report within five calendar days child care hours in 
excess of program limits with an accompanying explanation of the 
exigent circumstances;
    (iv) How to handle and seek sponsor assistance in case of problems 
and disputes with au pairs and how to report emergencies and problems 
to the sponsor and/or the Department of State;
    (v) Their requirement to promptly report to the sponsor any 
material changes in the family composition, changes in circumstances 
that could create stress or anxiety within the family (e.g., death, 
divorce, loss of job); and any host parent arrests or moving traffic 
violations.
    (vi) How cultural differences and practices may affect the host 
family or the au pair and strategies for facilitating cultural 
activities for their au pairs; and
    (vii) The requirement to provide a safe, comfortable, and clean 
home environment free from sexual harassment, exploitation, or any 
other form of abuse; the au pair's right to privacy when not providing 
child care duties (e.g., private bedroom and private bathroom, 
possession of personal belongings and travel or other documentation 
(i.e., passport, visa, Form DS-2019)).
    (j) Host Family Agreement. Prior to issuance of Form DS-2019, 
sponsors must prepare a standard agreement between the au pair and host 
family that is printed on sponsor letterhead or otherwise indicates the 
placement is ``under the sponsorship of [name of sponsor].'' The 
agreement must include, at a minimum, the following sections, and the 
au pair and host family must individually initial each section to 
demonstrate their review of and acceptance of the following provisions:
    (1) Fees. An itemized list of the total fees and estimated costs of 
the program charged by the sponsor and the sponsor's third parties that 
the au pair and host family each will incur;
    (2) Duties. The agreement must include lists of the types of child 
care duties that are appropriate for an au pair and the types of duties 
that are not:

[[Page 74093]]

    (i) Appropriate au pair duties involve assisting with the daily 
needs and schedules of host family children by performing activities 
like the ones listed below:
    (A) Running children-related errands;
    (B) Driving or escorting children to school, appointments, outings, 
and activities;
    (C) Preparing children's meals and snacks and cleaning up 
afterwards;
    (D) Tidying the children's bedrooms and bathrooms including making 
beds, changing sheets, doing children's laundry, and picking up toys;
    (E) Monitoring children's homework and chores (including monitoring 
the feeding or walking of pets);
    (F) Bathing and dressing children; and
    (G) Additional duties associated with a child with special needs, 
which should be listed.
    (ii) Inappropriate au pair duties involve the activities listed 
below, and assignment of these or similar activities may result in 
sponsor termination of the host family from the program:
    (A) Providing professional, medical or nursing services;
    (B) Running family-related errands, such as grocery shopping;
    (C) Cleaning the house or working in the yard;
    (D) Doing host parent laundry;
    (E) Preparing meals for the family or cleaning the kitchen;
    (F) Managing the household, including correspondence;
    (G) Mandatory responsibility for pets;
    (H) Caring for other people's children during off-site play date; 
and
    (I) Other duties that are not related to the host children.
    (3) Weekly schedule. The sponsor should ensure that the host family 
prepares a typical weekly schedule (including duties and hours) for the 
sponsor to review (to confirm its compliance with regulatory 
requirements) before including it in the agreement. To modify the 
schedule, the sponsor should ensure that the host family prepares a new 
typical weekly schedule (with input from the au pair, as appropriate) 
and submits it to the sponsor for review before seeking approval from 
the au pair.
    (4) Weekends. A statement that the host family and the au pair 
agree that the host family will identify, before the end of each month, 
the weekends during the next month that the au pair need not provide 
child care.
    (5) Paid time off. A statement containing the following points:
    (i) The au pair agrees to provide four weeks' notice prior to 
taking paid time off.
    (ii) The host family may not dictate when the au pair takes paid 
time off.
    (iii) If the host family takes the au pair on a family vacation, 
they must pay all the au pair's room, board, and transportation costs 
and, although the schedule may vary, the au pair may only work the 
permissible number of hours.
    (6) Compensation. A summary of the gross compensation (i.e., not 
net of taxes) that the host family will pay the au pair weekly. 
Sponsors shall require host families to identify the highest of the 
Federal, State, or local minimum wage on the host family application, 
and also require host families to notify the sponsor if there is a 
change to the Federal, State, or local minimum wage during the au 
pair's program, and if necessary, initiate an updated Host Family 
Agreement under the compensation paragraph.
    (7) Hours of child care. A statement that the au pair's obligation 
is limited to no more than ten hours per day and no more than 31 or 40 
hours per week, depending upon whether the au pair is on a part-time or 
full-time program, and that overtime is not permitted except in exigent 
circumstances.
    (8) Excess hours. A statement that host families must report within 
five calendar days child care hours in excess of program limits with an 
accompanying explanation of the exigent circumstances.
    (9) Education component. A statement containing the following 
points:
    (i) Both parties have read the four options available for the au 
pair to complete the educational component of the program;
    (ii) The au pair will pursue one of the options;
    (iii) The host family will facilitate the au pair's efforts to 
pursue one of the options, including finding alternate child care if 
necessary and assisting with transportation; and
    (iv) The host family will pay to the au pair or school the required 
educational stipend.
    (10) Room and board. Identify the number of days per week, 
including weekends, that that the host family will provide lodging and 
meals.
    (11) In-kind benefits. A list of in-kind benefits (e.g., cell 
phone, gym membership, car for personal use) the host family will 
provide the au pair, including charges for such benefits, if applicable 
and if the au pair wishes to avail themselves of such benefits.
    (12) Training. A summary of any training the sponsor will provide 
the au pair, including specialized training for babies, infants, and 
children with special needs.
    (13) Home Environment. A statement of the host family's commitment 
to provide the au pair with a safe, comfortable, and clean home 
environment--free from sexual harassment, exploitation, or any other 
form of abuse--including a suitable private bedroom with a bed for the 
au pair that is neither convertible nor inflatable in nature, adequate 
storage space for clothing and personal belongings, study space, access 
to bathroom facilities that are lockable and not connected to any 
private bedroom other than the au pair's, or that are lockable and 
connected to the au pair's own bedroom and not shared with a family 
member or any other resident in the home, and with reasonable unimpeded 
access to outdoors for the au pair's non-child care hours and leave and 
in case of emergencies.
    (14) Changes to the Host Family Agreement. Sponsors must approve 
any changes to the Host Family Agreement and maintain written 
documentation with both parties' signatures to effect such changes.
    (15) Terms of Host Family Agreement. Sponsors have the option to 
end their relationships with host families and end the programs of au 
pairs who do not follow the terms the parties agreed to in the Host 
Family Agreement or authorized modifications thereto.
    (16) Request rematch. The Host Family Agreement does not limit an 
au pair or host family from requesting a rematch pursuant to paragraph 
(l) of this section or from ending their participation in the au pair 
program in accordance with sponsor procedures.
    (k) Au pair limitations and protections. (1) Sponsors shall require 
that:
    (i) With the exception of at-home play dates, host families may not 
place au pairs in charge of children that are not part of the host 
family; and a sufficient number of adults must be present at any group 
activity to supervise the children for whom the au pair is not 
responsible.
    (ii) At a minimum, host families must give au pairs an 
uninterrupted eight-hour period of rest per every 24 hours to ensure 
adequate sleep and time away from duty.
    (iii) At a minimum, host families must give au pairs one and one-
half consecutive days off (36 hours) each calendar week and one 
complete weekend (48 hours) off each calendar month.
    (iv) At a minimum, host families must give au pairs 56 hours of 
paid sick leave for a 12-month program and a pro-rated number of sick 
leave hours for program extensions shorter than 12 months. If the need 
for sick leave is foreseeable, the request should be made seven days in 
advance. If the need for sick leave is

[[Page 74094]]

not foreseeable, the au pair should request leave as soon as 
practicable after becoming aware of the need for leave.
    (v) At a minimum, host families must give au pair 80 hours (e.g., 
the equivalent of ten working days) of paid time off prior to the 
completion of a 12-month program, at the au pair's request. The host 
family must permit the au pair to take 40 hours of such leave in 
conjunction with a 36- or 48-hour weekend. Host families may not 
dictate when au pairs may take paid time off. If they take the au pair 
on a family vacation, they may not subtract any time off from the au 
pair's 80 hours leave time.
    (vi) No host family may deprive an au pair from access to, or 
withhold or hold without the au pair's permission, an au pair's 
identification papers (including passport and Social Security card), 
cellphone, flight tickets or other travel documents, Form DS-2019, or 
other personal property. Sponsors shall require that host families may 
not prevent communication between an au pair and the sponsor or the 
Department of State at any time, and between the au pair and his or her 
family while the au pair is not providing child care.
    (vii) Host families must provide au pairs a safe, comfortable, and 
clean home environment free from sexual harassment, exploitation, or 
any other form of abuse, and they must respect the au pair's privacy, 
including both their personal living space and their personal 
belongings, including travel or other documentation (e.g., passport, 
visa, Form DS-2019); and
    (viii) Host family members may not photograph or create video 
recordings (e.g., use a nanny-cam) of an au pair without prior and 
ongoing consent by the au pair. Host family members may not photograph 
or create video recordings of the au pair's private bedroom or primary 
bathroom while the au pair occupies them.
    (2) Sponsors may terminate host families from the program if they 
fail to comply with the requirements in paragraph (k)(1) of this 
section.
    (l) Rematch. Irreconcilable differences between a host family and 
au pair require that the au pair be removed from the host family home. 
The sponsor must report these instances to the Department of State 
within the next business day and pursuant to reporting requirements at 
paragraph (r)(2) of this section.
    (1) If the sponsor determines that actions on the part of the au 
pair demonstrate their unsuitability to be placed with a new host 
family, the sponsor must end the au pair's program in the Student and 
Exchange Visitor Information System (SEVIS) and ensure that return 
travel expenses have been secured.
    (2) If the sponsor determines that the au pair still meets the au 
pair eligibility criteria, the sponsor must make an expedient, fair, 
and good faith effort to find a new host family placement for the au 
pair.
    (3) If the au pair does not wish to be rematched, the sponsor must 
end the au pair's program in SEVIS, and the au pair will receive no 
refund from the sponsor, unless the au pair was subject to harassment, 
exploitation, or any other form of abuse in the au pair placement.
    (4) Au pairs that have completed 75 percent of their initial 
program or are on six-, nine-, or 12-month extensions may not request a 
rematch and are not entitled to any refund of fees paid.
    (5) If the sponsor is unable to find a suitable rematch for the au 
pair, the sponsor must refund the following percentages of all fees 
they charged the au pair to participate in the program, as well as a 
percentage of the return trip ticket, based on the portion of the 
program duration the au pair completed before leaving the host family's 
home:
    (i) Less than 25% of the initial program duration: 75%.
    (ii) Between 25-49% of the initial program duration: 50%.
    (iii) Between 50-75% of the initial program duration: 25%.
    (iv) Over 75% of the program duration: 0%.
    (6) Before a rematched au pair moves into a new host family home, 
sponsors must confirm that new host family meets the eligibility 
requirements set forth in paragraph (h) of this section, obtain a fully 
executed Host Family Agreement between the rematched au pair and the 
new host family; and conduct a host family orientation as set forth in 
paragraph (i) of this section.
    (7) For an au pair that has enrolled in an in-person class, the 
sponsor should use best efforts to place the au pair in a geographic 
locale that is convenient for continuation of the class.
    (m) Hours. (1) The weekly hours an au pair may provide child care 
must be stipulated in the Host Family Agreement and may:
    (i) Either be identified as a part time program providing 24-31 
hours of child care per week, or identified as a full-time program 
providing 32-40 hours of child care per week;
    (ii) Not carry over hours not worked in one week (i.e., the 
difference between an au pair's actual hours worked in a week and their 
program's maximum-hours limit) over to the next week to exceed the 
program's maximum-hours limit in that next week; and
    (iii) Not provide more than ten hours of child care each day.
    (2) Hours providing child care is defined as follows:
    (i) Any time the au pair is a caretaker for the family children 
(including time to drop off or pick up children);
    (ii) Any time the au pair is ``on call,'' (i.e., periods of time 
they are not free to do as they please, because the host family has an 
imminent need for child care); and
    (iii) Time spent at the required family day conference.
    (3) Time spent by an au pair with host families during which the au 
pair is entirely relieved of child care duties and voluntarily 
participating as a member of the family, not as a caretaker, is not 
considered time providing child care.
    (4) When an au pair is required to work overnight hours:
    (i) The au pairs' regular work schedules may not include providing 
child care between 11 p.m. and 5 a.m., unless exigent circumstances 
arise, in which case the au pair may work these hours for no more than 
three consecutive nights;
    (ii) If the au pair is considered a caretaker during these 
overnight hours, the au pair may nevertheless sleep and count these 
hours toward providing child care: and
    (iii) To the extent overnight hours result in hours exceeding the 
maximum amount permitted under the program, the au pair must be 
compensated as specified in paragraph (n)(4)(iv) of this section.
    (5) If the host family and au pair agree to change the number or 
schedule of child-care hours due to extenuating circumstances (e.g., a 
reduction or change in hours to facilitate the au pair's pursuit of the 
educational component), sponsors must ensure that they modify and re-
execute the Host Family Agreement.
    (6) Sponsors shall develop and implement written standard 
operational procedures to track and document the weekly compensation in 
conformance with paragraphs (n)(1) and (2) of this section, and to 
ensure that:
    (i) Host families create a written weekly document signed by the 
host family and the au pair (in wet ink or using electronic signature) 
detailing the number of hours and days of provided child care that 
week, the number of hours used as the required time off, the total 
amount of compensation paid to the au pair for that week, any room and 
board deductions taken, any paid time off or sick leave used, if 
applicable; and
    (ii) Host families provide copies of the signed document to the au 
pair each

[[Page 74095]]

week, and sponsors must collect and review the documents each month.
    (7) Sponsors may terminate the program participation of a host 
family or au pair if they do not adhere to the maximum hours and 
requirements set forth in this section or if there are repeated 
requests for child care hours in excess of program limits.
    (n) Compensation. Sponsors must ensure that:
    (1) Host families compensate au pairs on a weekly basis based on 
the maximum number of child care hours of the au pair program and for 
any hours worked in excess of that maximum number and keep a document 
as set forth in paragraph (m)(6) of this section. Weekly payments shall 
be deposited directly into a bank account held in the au pair's name.
    (2) Host families are permitted to deduct room and board expenses 
as set forth under the Fair Labor Standards Act and agreed upon in the 
Host Family Agreement. Credits for room and board may be taken only 
when the employee actually receives the lodging and meals. The 
following amounts are permissible credits under the FLSA towards an au 
pair's wages for meals actually provided: $2.72 for a breakfast, $3.63 
for a lunch, and $4.53 for a dinner (or $10.88 per day if all meals are 
provided). The following amount is a permissible credit under the FLSA 
towards an au pair's wages for lodging actually provided: $54.38 per 
week. The total permissible credit towards an au pair's wages per week 
for a full seven days of room and board actually provided is $130.54 (7 
times $10.88 equals $76.16 for a full week of meals plus $54.38 for a 
full week of lodging). The permissible credit does not change based on 
the tier wage level at which the au pair is compensated.
    (3) Host families are permitted to deduct from au pair's pay any 
cost of in-kind benefits that are agreed upon in the Host Family 
Agreement. The host family may charge the au pair for such benefits if 
the au pair agrees to the charge and the host family does not profit 
from the amount charged. The host family may not, however, deduct from 
the au pair's wages items that are primarily for the benefit or 
convenience of the host family or sponsor, nor may the host family 
require the au pair to reimburse the host family in cash for the cost 
of such items in lieu of deducting the cost from the au pair's wages. 
The host family may charge the au pair for such benefits only if the 
in-kind benefit is truly for the benefit of the au pair, the au pair 
agrees to the charge, and the host family does not profit from the 
amount charged. Sponsors must ensure that the host family does not 
charge the au pair if the host family requires the au pair to accept 
any of the benefits (such as a cell phone so that the family may reach 
the au pair); and
    (4) The hourly rate of compensation is based on a multi-tiered 
system.
    (i) The sponsor must first identify the highest of the Federal, 
State, or local minimum wage rate that applies to the jurisdiction in 
which the host family's primary residence is located;
    (ii) The sponsor then determines the hourly rate the host family 
must pay the au pair based on the tier in which the rate identified 
falls in the following table:

----------------------------------------------------------------------------------------------------------------
                                          Based upon the host family city,
                                           the highest of Federal, State,             Au pair receives
                                                  or local min wage
----------------------------------------------------------------------------------------------------------------
Tier 1..................................  $7.25-$8.00 per hour............  $8 per hour.
Tier 2..................................  $8.01-$12.00 per hour...........  $12 per hour.
Tier 3..................................  $12.01-$15.00 per hour..........  $15 per hour.
Tier 4..................................  $15.01-$18.00 per hour..........  $18 per hour.*
----------------------------------------------------------------------------------------------------------------
* Or the applicable Federal, State, or local minimum hourly wage, if higher.

    (iii) The au pair receives the maximum amount of the identified 
tier, or the highest of the applicable Federal, State, or local minimum 
wage if higher.
    (iv) When part-time au pairs work more than 31 hours in a week 
regardless of the reason but not more than 40 hours, they shall be 
compensated for those excess hours at the hourly rate of the applicable 
tier identified in paragraph (n)(4)(ii) of this section or the highest 
of the applicable Federal, State, or local minimum wage if higher. When 
part-time or full-time au pairs work over 40 hours in a week regardless 
of the reason, they shall be compensated for those excess hours at the 
hourly rate of the applicable tier identified in paragraph (n)(4)(ii) 
of this section or the highest of the applicable Federal, State, or 
local minimum wage if higher, and they must also be paid any overtime 
premium due under applicable Federal, State, or local law. In addition, 
au pairs must be paid any other overtime premiums due under applicable 
Federal, State, or local law for other hours worked.
    (v) The Department of State will periodically, but no less than 
every three years (or at any shorter interval that is desirable and 
feasible), update the hourly pay rates in the chart in paragraph 
(n)(4)(ii) of this section via Notice, in the Federal Register, in 
response to changes in economic conditions. The required change will be 
accomplished by adjusting the upper range of each tier by an identical 
amount each update cycle. Although the Department of State will strive 
to increase the hourly pay rates in the chart to keep up with the 
highest applicable minimum wage, if an au pair resides in a 
jurisdiction that has a minimum wage that is higher than the upper 
range of Tier 4, the au pair shall be paid at that higher minimum wage 
rate regardless of the rate in Tier 4.
    (o) Educational component. A sponsor must ensure that au pairs 
complete one of the following four educational component options during 
an initial, extended, or rematched program:
    (1) Academic coursework option: Enroll in or register at a U.S. 
post-secondary accredited academic institution and demonstrate that the 
au pair either completed with a passing mark or successfully audited 
the required course(s).
    (i) For the initial twelve-month program and for a nine- or twelve-
month extension, an au pair must pass or formally audit academic 
coursework equivalent to three semester classes (nine semester hours or 
their equivalent).
    (A) An au pair may pursue no more than one third of the required 
coursework online if local circumstances permit.
    (B) This coursework must be spread over two semesters or 
equivalent.
    (ii) For a six-month extension, an au pair must attend in-person 
classes and pass or formally audit academic coursework equivalent to 
one semester class (three semester hours or their equivalent)
    (2) Continuing education option: Enroll in a continuing education 
institution and successfully complete in-person classroom-based 
coursework.

[[Page 74096]]

    (i) For the initial twelve-month program and for a nine- or twelve-
month extension, an au pair must successfully complete 10 continuing 
education credits/units (CEUs) which is equivalent to 100 contact 
hours;
    (ii) For a six-month extension an au pair must successfully 
complete five CEUs or 50 contact hours.
    (3) Customized course option: Enroll in an in-person classroom-
based, customized course designed for au pairs and developed by a 
sponsor with a U.S. post-secondary accredited academic institution or a 
continuing education institution:
    (i) For the initial twelve-month program and for a nine-or twelve-
month extension, an au pair must pass or formally audit a customized 
course that is equivalent to nine semester hours, ten CEUs, or 100 
contact hours.
    (ii) For a six-month extension, an au pair must successfully 
complete three semester hours, five CEUs, or 50 contact hours,
    (4) Combination option: Complete a combination of community service 
and in-person academic or continuing education coursework.
    (i) For the initial twelve-month program and for a nine- or twelve-
month extension, an au pair must successfully complete:
    (A) 48 hours of volunteer, unpaid community service at a 501(c)(3) 
tax exempt organization that is dedicated to a charitable, civic, 
humanitarian, or other similar purpose; and
    (B) Successfully pass or audit three semester hours of in-person 
classroom based academic coursework at a U.S. post-secondary academic 
institution, or five CEUs or 50 contact hours of in-person continuing 
education classes.
    (ii) For a six-month extension, an au pair must successfully 
complete:
    (A) 45 hours of volunteer, unpaid community service at a 501(c)(3) 
tax exempt organization that is dedicated to a charitable, civic, 
humanitarian, or other similar purpose; or
    (B) Successfully pass or audit three semester hours of in-person 
classroom based academic coursework at a U.S. post-secondary academic 
institution or five CEUs or 50 contact hours of in-person continuing 
education classes.
    (5) Incomplete Educational Component. Au pairs that do not 
successfully complete the educational component of an initial placement 
are not eligible for an extension or to repeat the program.
    (6) Educational allowance. Sponsors must ensure that host families 
pay directly to the au pair or the academic or continuing education 
institutions and present evidence of payment to their local coordinator 
and the au pair, towards actual and documentable course-related or 
community service costs necessary for the au pair to fulfill the 
program's educational requirements, up to $1,200 for a twelve-month 
program and an additional $1,200 for a nine or 12-month program 
extension, or up to an additional $600 for a six month program 
extension.
    (p) Monitoring. Sponsors must fully monitor and document all au 
pair placements through personal contact (i.e., in-person, through a 
text conversation, through an email exchange, or on the telephone). At 
a minimum:
    (1) Sponsors shall require that all local and regional 
organizational representatives maintain dated records of all personal 
contacts with au pairs and host families for which they are responsible 
(detailing issues or problems discussed) and all documentation 
concerning the au pairs' child care hours provided, compensation, or 
deductions from pay.
    (2) Sponsors must require that local coordinators:
    (i) Make personal contact with each au pair and that au pair's host 
family separately within 48 hours following the au pair's arrival at 
the host family home;
    (ii) Meets in person with each au pair and that au pair's host 
family together at the host family home no more than two weeks after an 
au pair's arrival at the host family;
    (iii) For rematch (for either or both the au pair and host family) 
make personal contact separately and twice monthly (for two months) 
with the au pair and host family following the re-placement; and
    (iv) Are appraised of their obligation to report unusual or serious 
situations or incidents involving either the au pair or host family.
    (3) Sponsors must require:
    (i) Local coordinators make separate, monthly, and personal contact 
with each au pair and host family for which the local coordinator is 
responsible;
    (ii) Quarterly personal contact and documentation by the regional 
coordinators with each au pair and host family for which the regional 
coordinator is responsible.
    (4) Sponsors shall require that its local or regional coordinators 
organize and implement, at a minimum, one family day in-person 
conference for au pairs and their host families both during an au 
pair's initial placement and extended placement, if appropriate. Family 
day conferences must be held in locations that are no more than 120 
miles from each host family residence.
    (q) Duration and extensions. (1) The initial duration of an au pair 
program is one year (i.e., 12 consecutive months).
    (2) The Department of State, in its sole discretion, may approve a 
one-time extension to stay with the current host family for a duration 
of six, nine, or 12 months for an au pair beyond the initial program 
period if the au pair still meets all eligibility requirements. 
Sponsors must submit applications and supporting materials for such 
extensions no less than 30 calendar days prior to the program end date 
listed on the au pair's Form DS-2019.
    (3) Sponsors must submit extension application electronically in 
SEVIS and supporting documentation must be submitted to the Department 
of State on the sponsor's organizational letterhead and contain the 
following information:
    (i) Au pair's name, SEVIS identification number, date of birth, the 
length of the extension period being requested;
    (ii) Sponsor statement of assurance of the au pair's completion of 
the educational requirements during the initial program, as set forth 
in paragraph (o) of this section, through a transcript, certificate of 
completion, volunteer time sheet, or other suitable documentation; and
    (iii) Proof of payment by the sponsor of the required non-
refundable extension fee (see Sec.  62.17) via Pay.gov.
    (r) Reporting requirements. (1) In addition to the reporting 
requirements set forth in Sec.  62.15, sponsors are required to submit 
the following supplemental reports annually by June 30:
    (i) A report in SEVIS of all final program participation placements 
in the format directed by the Department of State. The information 
entered in SEVIS must be accurate to the best ability of the sponsor;
    (ii) A summation of annual survey results for all host families and 
au pairs, indicating program strengths and weaknesses and level of 
satisfaction;
    (iii) A summation of all complaints by host families and au pairs 
regarding host family or au pair participation in the program, nature 
of the complaint, its resolution, and whether any unresolved complaints 
are outstanding;
    (iv) A summation of all situations that resulted in the removal or 
rematch of an au pair with more than one host family and situations 
where more than one au pair is placed with one host family during the 
program year;
    (v) A complete set of all current promotional materials, brochures, 
or pamphlets distributed either to host families or au pairs by the 
sponsor or their foreign third parties (including

[[Page 74097]]

original and English translation, as applicable);
    (vi) An annual itemized fee and cost schedules, including 
recruitment fees and associated costs; these schedules must correspond 
to those that the sponsor (and the sponsor's third party) has included 
in its recruitment materials and posted to a visible location on the 
sponsor's website;
    (vii) Itemized au pair price lists (in accordance with any template 
the Department of State may provide) that identify on a country-
specific basis the costs exchange visitors must pay each sponsor and 
foreign third party in order to participate in the program. Sponsors 
must submit separate lists for each country/foreign third party and 
each list should provide that third party's website address; and
    (viii) A report by a certified public accountant, conducted 
pursuant to a format and on a schedule designated by the Department of 
State, attesting to the sponsor's compliance with the procedures and 
reporting requirements set forth in this subpart;
    (2) In addition to Sec.  62.13(d), report within the next business 
day to the Department of State any incident or allegation involving the 
actual or alleged sexual harassment, exploitation or any other form of 
abuse, or rematch of an au pair;
    (3) Within 30 days of execution of a new written agreement with a 
foreign third party, a sponsor must provide the Department of State 
with that third party's name and contact information (i.e., telephone 
number, email address, physical mailing address, point of contact, and 
website address). The sponsor also must provide the Department of State 
with updated contact information or changes in material information for 
its foreign third party within 30 days after receiving notice of any 
such change. Sponsors must utilize only vetted foreign entities 
identified in the Foreign Entity Report to assist in fulfilling the 
sponsors' core programmatic functions outside the United States, and 
they must inform the Department within 30 days after ceasing to work 
with a foreign third party previously identified.
    (s) Repeat participation. Foreign nationals who enter the United 
States as au pairs, have successfully completed their programs, and 
have returned home are eligible to participate again as au pairs, 
provided that they have resided outside the United States for at least 
two years following completion of their most recent exchange program 
and meet all eligibility requirements as an au pair.
    (t) Relationship to state and local laws. (1) In order to ensure 
nationwide consistency and coherent implementation of the Au pair 
category of the Exchange Visitor Program, the regulations in this 
section provide the exclusive requirements applicable to sponsors, host 
families and au pairs on the matters, and may not be supplemented by 
state or local law except as provided in paragraph (t)(3) of this 
section:
    (i) Au pair selection.
    (ii) Au pair placement.
    (iii) Hours and compensation.
    (iv) Unemployment insurance taxes and employment training taxes.
    (v) Minimum time off and paid time off and sick leave; and
    (vi) Educational component.
    (2) In addition to the matters listed in paragraph (t)(1) of this 
section, the regulatory framework provided under this section shall 
preempt any state or local law that, in the Department of State's view, 
otherwise poses an obstacle to the realization of the objectives of the 
Au pair category of the Exchange Visitor Program except as provided in 
paragraph (t)(3) of this section. Sexual harassment and retaliation 
laws shall not be deemed to pose an obstacle to the realization of the 
objectives of the Au pair category.
    (3) Notwithstanding the foregoing, state and local minimum wage and 
overtime pay requirements shall apply to au pairs where applicable and 
shall not be deemed to be an obstacle to the realization of the 
objectives of the Au pair category of the Exchange Visitor Program.
    (u) Severability. In the event that any provision of this section 
is held invalid as applied to any person or circumstance, such 
provision shall be construed, as applied to other persons or 
circumstances, to have maximum effect to the extent permitted under 
law. If any provision of this section is deemed invalid and 
unenforceable in any circumstance, such provision is severable from the 
remaining provisions of this section.
    (v) Transition period. Sponsors are not required to comply with the 
provisions of this section for au pairs with Program Begin Dates on the 
Form DS-2019 prior to the effective date of [180 DAYS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE]. Au pair exchange programs with a 
Program Begin Date on Form DS-2019 prior to [180 DAYS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE] are subject to the requirements of this 
section in effect at the time of the Program Begin Date. Any extensions 
of programs authorized prior to the effective date of [180 DAYS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE] are also subject to the 
requirements from this section that were in effect at the time of the 
Program Begin Date. Any new programs with a Program Begin Date on or 
after the effective date of [180 DAYS AFTER DATE OF PUBLICATION OF THE 
FINAL RULE], or program extensions authorized on or after the effective 
date of [180 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] are 
subject to the requirements set forth in this section.

Karen Ward,
Director, Office of Private Sector Exchange Designation, Bureau of 
Educational and Cultural Affairs, U.S. Department of State.
[FR Doc. 2023-23650 Filed 10-27-23; 8:45 am]
BILLING CODE 4710-05-P