01-12375. Exchange Visitor Program

AGENCY:

Department of State.

ACTION:

Proposed rule with request for comment.

SUMMARY:

This proposed rule would amend existing regulations governing the au pair exchange program. These amendments would create a sub-category of au pair exchange participation under which the au pair participant would provide fewer hours of child care for the host family while the required educational component that the au pair must complete would increase from not less than six semester hours of academic credit or its equivalent per year to not less than twelve semester hours of academic credit or its equivalent per year.

DATES:

Comments regarding this proposed rule will be accepted until June 15, 2001.

ADDRESSES:

Comments regarding this proposed rule should be submitted in duplicate and addressed as follows: U.S. Department of State, Bureau of Educational and Cultural Affairs, 301 Fourth Street, SW., Room 852, Washington, DC 20547.

FOR FURTHER INFORMATION CONTACT:

Stanley S. Colvin, U.S. Department of State, 301 Fourth Street, SW., Room 852, Washington, DC 20547; telephone [phone].

SUPPLEMENTARY INFORMATION:

These regulations govern Department-designated au pair programs under which foreign nationals are afforded the opportunity to live with an American host family and participate directly in the home life of the host family while providing child care services and attending a U.S. post-secondary educational institution. The Department's goal in proposing amendment of these existing regulations is to provide an opportunity for participation by foreign nationals who wish to pursue their academic studies more vigorously. To this end, the Department proposes to reduce the amount of child care services the potential au pair participant will provide to not more than 30 hours per week while increasing the amount of academic credit the au pair will pursue to not less than twelve semester hours or its equivalent. At the suggestion of Department-designated au pair sponsors, the Department proposes to identify this form of au pair participation as EduCare. Existing provisions for au pair participation based upon up to 45 hours of child care services and the pursuit of not less than six semester hours of academic credit or its equivalent remain unchanged.

To accomplish this dual objective, the Department is advised by its designated au pair program sponsors that potential EduCare au pair participants should be placed with host families that need before and after school child care services for their school age children. Accordingly, the Department proposes that potential EduCare au pair participants not be placed with families having pre-school children unless alternative, full-time arrangements are in place for the supervision of such pre-school children. As the potential EduCare au pair participant will be more actively pursuing his or her academic studies, the Department is also proposing a reduction in the number of hours that the au pair will provide child care services from not more than 45 hours per week to not more than 30 hours per week. This reduction in the number of hours of child care services provided dictates a corresponding reduction in the weekly wage paid to an EduCare au pair participant. An au pair participating in the EduCare program would still be paid in accordance with the provisions of the Fair Labor Standards Act. However, as a matter of administrative convenience for both Department-designated sponsors and participating host families, the Department proposes that the weekly wage for EduCare au pair participants be calculated as a percentage of the weekly wage paid to all other au pair participants.

The Department invites comment regarding this proposed rule notwithstanding the fact that it is under no legal obligation to do so. The oversight and administration of the Exchange Visitor Program are deemed to be a foreign affairs function of the United States Government. The Administrative Procedures Act, 5 U.S.C. 553(a)(1) (1994), specifically exempts foreign affairs functions from the rulemaking requirements of the Act.

List of Subjects in 22 CFR Part 62

• Cultural exchange programs

Accordingly, 22 CFR Part 62 is proposed to be amended as follows:

PART 62—EXCHANGE VISITOR PROGRAM

1. The Authority citation for Part 62 continues to read as follows:

Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, 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.

2. Section 62.31 is amended by revising paragraphs (a), (c)(1) through (c)(3), (e) introductory text, (e)(3) and (e)(5), (j), and (k) to read as follows:

§ 62.31

Au pairs.

(a) Introduction. This section governs Department of State-designated exchange visitor programs under which foreign nationals are afforded the opportunity to live with an American host family and participate directly in the home life of the host family. All au pair participants provide child care services to the host family and attend a U.S. post-secondary educational institution. Au pair participants provide up to forty-five hours of child care services per week and pursue not less than six semester hours of academic credit or its equivalent during their year of program participation. Au pairs participating in the EduCare program provide up to thirty hours of child care services per week and pursue not less than twelve semester hours of academic credit or its equivalent during their year of program participation.

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(c) * * *

(1) Limit the participation of foreign nationals in such programs to not more than one year;

(2) Limit the number of hours an EduCare au pair participant is obligated to provide child care services to not more than 10 hours per day or more than 30 hours per week and limit the number of hours all other au pair participants are obligated to provide child care services to not more than 10 hours per day or more than 45 hours per week;

(3) Require that EduCare au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than twelve semester hours of academic credit or its equivalent and that all other au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than six semester hours of academic credit or its equivalent;

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(e) Au pair placement. Sponsors shall secure, prior to the au pair's departure from the home country, a host family placement for each participant. Sponsors shall not:

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(3) Place an au pair with a host family having children under the age of two, unless the au pair has at least 200 hours of documented infant child care experience. An au pair participating in the EduCare program shall not be placed with a family having pre-school children in the home unless alternative full-time arrangements for the supervision of such pre-school children are in place;

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(5) Place an au pair with a host family unless a written agreement between the au pair and the host family detailing the au pair's obligation to provide child care has been signed by both the au pair and the host family prior to the au pair's departure from his or her home country. Such agreement shall clearly state whether the au pair is an EduCare program participant or not. Such agreement shall not limit the obligation to provide child care services to not more than 10 hours per day or more than 45 hours per week unless the au pair is an EduCare participant. Such agreement shall limit the obligation of an EduCare participant to provide child care service to not more than 10 hours per day or more than 30 hours per week.

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(j) Wages and hours. Sponsors shall require that au pair participants:

(1) Are compensated at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United Stated Department of Labor. EduCare participants shall be compensated at a weekly rate that is 75% of the weekly rate paid to non-EduCare participants;

(2) Do not provide more than 10 hours of child care per day, or more than 45 hours of child care in any one-week. EduCare participants may not provide more than 10 hours of child care per day or more than 30 hours of child care in any one week;

(3) Receive a minimum of one and one half days off per week in addition to one complete weekend off each month; and

(4) Receive two weeks of paid vacation.

(k) Educational component. Sponsors shall require that during their period of program participation, all EduCare au pair participants are enrolled in an accredited U.S. post-secondary institution for not less than twelve semester hours of academic credit or its equivalent and that all other au pair participants are enrolled in an accredited U.S. post-secondary institution for not less than six semester hours of academic credit or its equivalent. As a condition of program participation, host family participants must agree to facilitate the enrollment and attendance of the au pair in an accredited U.S. post-secondary institution and to pay the cost of such academic course work in an amount not to exceed $1,000 for EduCare au pair participants and in an amount not to exceed $500 for all other au pair participants.

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Dated: March 23, 2001.

Helena Kane Finn,

Acting Assistant Secretary for Educational and Cultural Affairs, Department of State.