While
families all over
America
have foreign-
b
orn nannies, the options for hiring them legally are very limited. A high
portion of the families hiring such individuals is likely not complying with the
nation's immigration laws.
There
are some availa
b
le strategies, however. They each have limitations and may require patience and
money. But if you want to follow the law, you will need to consider these possi
b
ilities.
J-1
Visas for Au Pairs
[Excerpted
from The J Visa Guide
b
ook
b
y
Greg
Siskin
d
,
William
Stock and
Steve
Yale-Loehr pu
b
lished
b
y Lexis Nexis (http://
b
ookstore.lexis.com/
b
ookstore/catalog?action=product&prod_id=12991&cat_id=T&pcat_id=31&pu
b
_id=)
The
au pair prog
ram
has
b
een controversial since its inception in 1985. When the first two pilot prog
ram
s ended, the U.S. Info
rm
ation Agency (USIA), which administered the au pair prog
ram
at the time, wanted to te
rm
ina
te their designation
b
ecause it claimed that it lacked statutory authority to regulate the prog
ram
s. In 1988 and 1990, Congress passed legislation authorizing and o
b
liging the USIA to administer and regulate the au pair prog
ram
. The prog
ram
was supposed to end in 1995,
b
ut it was extended until 1997. In 1997 Congress extended the au pair prog
ram
pe
rm
anently.
Au
pair prog
ram
s allow foreign nationals to enter the
United States
, live with a
U.S.
family and experience American family life while providing limited child care
and attending a
U.S.
post-secondary educational institution. Au pair participants may elect to
participate in the “EduCare” prog
ram
, a su
b
set of the au pair prog
ram
, which allows the au pair to reduce the num
b
er of hours per week spent on child care and to pursue academic studies more
vigorously. Orig
ina
lly, the prog
ram
was only availa
b
le to individuals from
Western Europe
. In 1995, however, Congress expanded the prog
ram
to admit students from around the world except those countries with which the
United States
has no diplomatic relations. All au pairs must
b
e proficient in English, high school graduates and
b
etween the ages of 18 and 26.
Applicants
to an au pair prog
ram
must su
b
mit to an in-person interview in English, provide three non-family references,
successfully pass a crim
ina
l
b
ackground check, and satisfactorily complete a physical exam
ina
tion. Further, an
applicant
must have a personality profile done that is
b
ased on a psychometric test that measures the differences
b
etween the characteristics among
applicant
s and those characteristics considered most important to successfully
participate in the au pair prog
ram
. The sponsor is responsi
b
le for providing a host family with the prospective au pair's complete
application, including references, so the family may dete
rm
ine whether the
applicant
would
b
e compati
b
le with them.
Host
families must
b
e fluent in English and must pass a
b
ackground check. In addition, they must either
b
e
U.S.
citizens or legal pe
rm
anent residents. All adult family mem
b
ers living in the home must su
b
mit to an interview conducted
b
y the prog
ram
sponsor. In addition, the family must have the f
ina
ncial resources to pay the au pair a weekly stipend of at
lea
st the minimum wage and up to $500 for academic expenses. Au pairs who
participate in the EduCare prog
ram
are paid 75% of the weekly rate paid t
o n
on-EduCare participants, and up to $1000 for the au pair’s academic work
Au
pairs may not
b
e placed in any one of the following five situations:
. The family has not specifically agreed that a parent or other responsi
b
le adult will remain in the home for the first three days following the au
pair's arrival to provide a transition period and to ensure that the au pair is
comforta
b
le in his or her new home, community, responsi
b
ilities and surroundings;
. The family has a child less than three months old, unless a parent or
other responsi
b
le adult is present in the home;
. The family has children under two years old, unless the au pair has at
lea
st 200 hours of documented infant childcare experience;
. The family and the au pair have not executed a written agreement
outlining the au pair's o
b
ligation to provide no more than 45 hours of child care services per week (EduCare
participants may provide no more than 10 hours per day or 30 hours of child care
services each week); or
. The family cannot provide the au pair with a suita
b
le private
b
edroom.
Just
days after the USIA merged into the State Department, the State Department
issued new rules on the selection and orientation of
b
oth host family and au pair participants. The State Department indicated that
the purpose of the rule is to provide greater consistency in the au pair prog
ram
(and presuma
b
ly in response to the highly pu
b
licized recent au pair murder trial in
New England
involving a British J-1 visa holder). The new rules
b
re
ak
down into four
gene
ral categories: placement of the au pair, requirements for selection as a host
family, orientation to the prog
ram
, and reporting requirements.
The
following are new requirements related to the placement of au pairs:
. A parent or other responsi
b
le adult must remain in the home for the first three days the au pair is there.
. An au pair is not to
b
e placed with a family with a child under three unless a parent or responsi
b
le adult is in the home.
. An au pair is not to
b
e placed in a family with a child under two unless the au pair has at
lea
st 200 hours of documented infant care experience.
. An au pair is not to
b
e placed in a family with a special needs child unless the au pair has
documented prior experience and the family has reviewed it.
. A written agreement
b
etween the au pair and the host family is required, and must spell out that the
au pair will provide no more than 45 hours of child care per week. EduCare
participants may provide no more than 10 hours per day or 30 hours of child care
services each week.
. The au pair must
b
e provided with a private
b
edroom.
. There must
b
e a telephone interview
b
etween the au pair and the host family
b
efore the au pair
lea
ves home to come to the
United States
.
The
new requirements for a host family are as follows:
. The host parents must
b
e
U.S.
citizens or pe
rm
anent residents.
. The host parents must
b
e fluent in spoken English.
. All adults living in the host family must
b
e interviewed
b
y the prog
ram
sponsor.
. All adults living in the host family must pass a
b
ackground investigation, including employment and personal character references.
. The host family must have f
ina
ncial resources commensurate with its o
b
ligations as host.
. The host family must
b
e provided with a copy of the au pair's application, including all references.
The
au pair must
b
e provided with copies of all rules and regulations that govern his or her
participation in the au pair prog
ram
, as well as a detailed profile of the family and community where he or she will
b
e placed and any schools in the area, including costs of attendance. The host
family must attend a host family conference, and must
b
e provided with copies of regulations governing the au pair prog
ram
.
The
new regulation also requires the prog
ram
sponsor to file an annual report with the State Department. The report must
include the following info
rm
ation:
. The results of surveys of host families and au pairs regarding their
satisfaction with the prog
ram
;
. Lists of complaints a
b
out the prog
ram
, including actions t
ak
en in response;
. Copies of all promotional literature; and
. A report
b
y a certified pu
b
lic accountant affi
rm
ing that the prog
ram
is complying with the procedures and reporting requirements of these
regulations.
In
addition to the new requirements, sponsors have a num
b
er of other responsi
b
ilities in administering the au pair prog
ram
:
. Au pairs should provide no more than 45 hours per week or 10 hours per
day of child care. EduCare participants may provide no more than 10 hours per
day or 30 hours of child care services each week. Au pairs must
b
e given one and one-half days off per week, one full weekend off per month and
two weeks of paid vacation per year;
. Au pairs must enroll in an accredited post-secondary educational
institution for at
lea
st six semester credit hours or its equivalent, or 12 semester hours for EduCare
participants;
. Au pairs may not participate in the prog
ram
for more than one year; and
. Each host family must attend at
lea
st one ``family day conference'' to
b
e given
b
y the sponsor during the placement year.
In
addition, sponsors must info
rm
au pairs of their child care duties and what is considered unaccepta
b
le
b
ehavior. The sponsor must also provide the au pair with a summary of his or her
travel arrangements and a detailed description of the host family, the community
in which the au pair will live and the educational institutions in that area
including the tuition costs. Prog
ram
sponsors must ensure that the au pair's compensation is at
lea
st the minimum wage set forth
b
y the Department of La
b
or, with appropriate deductions for room and
b
oard. Participants in the EduCare prog
ram
are to
b
e paid 75% of the weekly rate paid t
o n
on-EduCare participants.
Prog
ram
sponsors are also responsi
b
le for providing child care training for au pairs. Au pair prog
ram
participants must receive at
lea
st eight hours of child safety instruction, of which four must
b
e specifically infant-related. In addition, they must receive at
lea
st 24 hours of child development instruction, of which no fewer than four hours
must
b
e instruction in the care of children under two years old. This child
development instruction should include topics such as stress management and Sh
ak
en Ba
b
y Syndrome. Such training may
b
e provided in the au pair's home country.
The
State Department has approved the following au pair prog
ram
sponsors:
EDUCATIONAL
FOUNDATION FOR
FOREIGN
STUDY (EF Au Pair)
EF
Center
Boston
One Memorial Drive
Cam
b
ridge
,
MA
02142
Responsi
b
le Officer (R.O.): Mr. Steven Meyer
Tel.:
(617) 619-1000
Tel.:
(800) 333-6056
Fax:
(617) 619-1100
Internet:
http://www.efaupair.org/APNetscape/index.html
AM
ERICAN INSTITUTE FOR FOREIGN
STUDY
(Au Pair in
America
)
River
Plaza
Nine West Broad Street
Stamford
,
Connecticut
06902
R.O.:
Ms. Ruth Frizell Ferry
Tel.:
(203) 399-5000
Tel.:
(800) 727-2437
Fax:
(203) 399-5592
Internet:
http://www.aifs.org/
EURAUPAIR
INTERCULTURAL
CHILD
CARE PROGR
AM
S
250 North Coast Highway
Laguna Beach
,
CA
92651
R.O.:
Mr.
William
Gustafson
Tel.:
(914) 494-5500
Tel.:
(800) 333-3804
Fax:
(914) 497-6235
Internet:
http://www.euraupair.com/
AYUSA
INTERNATIONAL
(Au
Pair Care)
2226 Bush Street
San Francisco
,
California
94115
R.O.:
Mr. John Wilhelm
Tel.:
(415) 434-8788
Tel.:
(800) 428-7247
Fax:
(415) 616-0585
Internet:
http://www.aupaircare.com/
INTEREXCHANGE
AU PAIR
161
Sixth Avenue
- 13th Floor
New York
,
NY
10013
R.O.:
Ms. Uta Christianson
Tel.:
(212) 924-0446
Tel.:
(800) 287-2477
Fax:
(212) 924-0575
Internet:
http://www.interexchange.org/
EXPLORING
CULTURAL AND
LEARNING/AU
PAIR REGISTRY
(Au
Pair Prog
ram
USA
)
6955
Union
Park
Center
Suite
100
Salt L
ak
e City
,
UT
84047
R.O.:
Mr. D. Gary Christian
Tel.:
(801) 255-7722
Tel.:
(800) 574-8889
Fax:
(801) 255-7782
Internet:
http://www.goaupair.com/
The
DOS list of approved au pair prog
ram
s is also on the Internet at http://exchanges.state.gov/education/jexchanges/private/AuPair_Sponsors.pdf
Other
visa possibilities
While
the J-1 visa is by far the most common visa category for au pairs, other child
care workers occasionally come in using other visa categories.
If
a nanny would like to come to the
US
to work with a family coming to the
US
on a work visa, the nanny may be able to work on a B-1 visa. Under Section
41.31 of the Foreign Affairs manual, personal or domestic servants who accompany
or follow to join employers entering the US in B, E, F, H, I, J, L or M
nonimmigrants may enter the US if
1.
The employee has a residence abroad which he or she has no intention of
abandoning (notwithstanding the fact that the employer may be in a non immigrant
status which does not require such a showing);
2.
The employee can demonstrate at least one year’s experience as a personal or
domestic servant, and
3.
The employee has been employed abroad by the employer as a personal or domestic
servant, for at least one year prior to the date of the employer’s admission
to the United States; or
4.
If the employee-employer relationship existed immediately prior to the time of
visa application, the employer can demonstrate that he or she has regularly
employed (either year-round or seasonally) personal or domestic servants over a
period of several years preceding the domestic servant’s visa application for
a nonimmigrant B-1 visa.
5.
The employer and the employee have signed an employment contract which contains
statements that the employer guarantees the employee the minimum or prevailing
wages, whichever is greater, and free room and board and will be the only
provider of employment to the servant41.31 N6.3-4 Servants of Lawful Permanent
Residents (LPRs)
H-2B
visas are sometimes used by child monitors. H-2B nonimmigrant work visa provides
a method for US employers and agents to obtain the services of foreign nationals
to fill temporary needs for additional workers. The annual cap on this type of
visa is 66,000. Until recently, the limits and requirements of the category
caused usage of the visa to be marginal. For example, in 1995, only 2,398 H-2B
visas were issued. However, the visa has become very popular in recent years,
particularly in the hospitality industry. The limit has been much closer to
being reached recently.
H-2B
visas require employers to go through a process of advertising for a position to
show no Americans are available to fill the position and are immediately
available.
The length of the stay on an H-2B visa is limited by the duration of the
employer’s temporary need for additional workers. The maximum authorized
period of stay is one year, and the visa may be extended for a total of three
years. However, extension applications are closely scrutinized. Either skilled
or unskilled workers may be employed on an H-2B visa. Several unpublished
decisions provide what little guidance is available on this subject. What does
seem to be key is proving the need for the worker is temporary. If an employer
does not explain why the need for the child monitor will end or hinting that the
position is permanent will hurt the petition. An employer, for example, might
want to specify that the need for the child monitor will end when a child
registers in school.
Finally,
child care workers are potentially eligible for permanent residency visas by
going through a labor certification process. Like the H-2B visa, this is a
process where an employer shows that after attempting to recruit for a position,
no American workers with the minimum qualifications for the job are immediately
available. Unlike an H-2B visa, an employer must show the position is permanent
in nature and not temporary. The process can take several years and it is very
difficult to maintain a legal nonimmigrant status in the
US
while waiting for the green card to come through.
