[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Rules and Regulations]
[Pages 8547-8553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3597]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 514
[Rulemaking No. 110]
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Final rule.
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SUMMARY: The Agency hereby adopts as final with modifications the
interim rule governing its oversight and administration of au pair
programs. Au pair programs permit foreign nationals to enter the United
States for a period of one year for the purpose of residing with an
American host family while participating directly in the home life of
the family and providing limited child care services. The foreign
national also attends a United States accredited post-secondary
educational institution. These rules are promulgated pursuant to Public
Law 103-415 which authorizes the continued operation, until September
30, 1995, of au pair programs currently designated by the Agency.
DATES: Effective date: These rules are effective February 15, 1995.
Applicability dates: With the exceptions of Sec. 514.31(j) (1) and
(4), and Sec. 514.31(k), these rules apply to all au pair placements
and operations as of February 15, 1995. The provisions set forth at
Sec. 514.31(j) (1) and (4) and Sec. 514.31(k) shall apply only to au
pair participants placed after date of publication.
Compliance date: Sponsor implementation of the provisions set forth
at Sec. 514.31(g) (1) and (2) will not be expected before March 31,
1995.
FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information
Agency, 301 4th Street, SW., Washington, DC 20547; Telephone, (202)
619-6829.
SUPPLEMENTARY INFORMATION: First begun pursuant to the provisions of
the United States Information and Educational Exchange Act of 1948
(``Smith-Mundt''), and subsequently incorporated into and broadened
under the Fulbright-Hays Act, educational and cultural exchange
activities have, over the past forty years, exposed millions of foreign
nationals to the United States, its peoples, cultures, skills, business
techniques, educational institutions, and way of life. The Fulbright-
Hays Act mandates reciprocal exchange and Americans traveling abroad
have, in similar fashion, developed an enhanced awareness of foreign
people, their cultures and societies. Thus, Fulbright-Hays programs
further one of the Agency's primary missions: increasing mutual
understanding between Americans and others through people-to-people
contact. Originally conducted by the Department of State, oversight of
exchange activities, occurring under the umbrella of the Exchange
Visitor Program, has been the responsibility of the Agency since 1978.
The Fulbright-Hays Act sets forth certain parameters which all
exchange activities must meet. With an eye towards ensuring that these
parameters were being met and acting in response to a Congressional
request, the General Accounting Office (``GAO'') investigated Agency
oversight and administration of the Exchange Visitor Program and its
attendant utilization of the J visa. In its report to Congress, dated
February 5, 1990 and entitled ``Inappropriate Uses [[Page 8548]] of
Educational and Cultural Exchange Visas,'' the GAO determined that
certain Exchange Visitor Program activities appeared to be inconsistent
with the statutory grant of authority and its underlying legislative
intent. GAO summarized its findings, stating:
``Most J visa activities appear to conform to the intent of the
1961 act. However, GAO believes that certain activities and programs
in the trainee and international visitor categories, including the
summer student/travel work, international camp counselor, and au
pair (Child care) programs, are inconsistent with the legislative
intent. GAO identified instances of participants working as waiters,
cooks, child care providers, amusement and leisure park workers, and
summer camp counselors. Authorizing J visas for participants and
activities that are not clearly for educational and cultural
purposes as specified in the act dilute the integrity of the J visa
and obscures the distinction between the J visa and other visas
granted for work purposes.''
The concerns raised in the GAO report had troubled USIA for several
years, especially the au pair program. Objections to the operation of
au pair programs under the Exchange Visitor Program and the use of the
J visa were also raised by the Department of Labor, the Immigration and
Naturalization Service, and, most importantly, USIA's congressional
committees of jurisdiction.
In June of 1993, USIA was approached by the au pair sponsors
conducting these programs to examine whether the Agency's past
objections to the continuation of these programs under the Exchange
Visitor Program could be resolved. The au pair sponsors were advised
that the Agency saw merit in the programs but had concluded that it
lacked statutory authority to conduct the programs as then configured.
The Agency's principal objection to the program was its lack of a bona
fide educational component sufficient to meet the statutory
requirements of the Fulbright-Hays Act. A secondary, but equally
compelling, objection was the program's failure to comply with the Fair
Labor Standards Act and its requirements governing the payment of
minimum wage.
The Agency and the au pair sponsors began earnest discussions
involving how best to regularize the au pair program in order for it to
find a permanent home at USIA. During the course of these discussions,
several tragic incidents involving au pair placements occurred and were
widely reported in the press. Specifically, the deaths of two infants
while in the care of au pairs and allegations of child molestation and
child pornography allegedly involving au pairs brought about
Congressional and public scrutiny of these programs. This scrutiny, in
turn, resulted in Congressional action which authorized and directed
the Agency to promulgate regulations governing au pair placements.
Pursuant to this clear directive, the Agency published, on December
14, 1994, interim final regulations governing the au pair program that
were both consistent with the provisions of the Fulbright-Hays Act and
which also provided safeguards for au pair participants and the
American host families with whom they are placed. Given the wide
popularity of these programs--and the criticisms of them--the Agency
met with, solicited, and incorporated the views of the au pair
organizations, interested members of the public and the views of those
congressional offices possessing jurisdiction over educational and
cultural exchange programs.
The Agency's Federal Register publication of this interim rule with
request for public comment generated over 3,000 responses from American
families during the thirty day public comment period. A considerable
number of the comments received had a remarkably familiar style and
theme, and focused primarily or exclusively on two issues: the rise in
weekly wage or stipend paid to au pairs and the requirement that au
pairs taking care of children under the age of two be at least 21 years
of age. Additionally, however, the Agency received a significant number
of personalized and thoughtful comments and responses, many which were
highly persuasive. A majority of the commentators, including a large
number who objected to certain aspects of the interim final rules,
praised the Agency for efforts to improve screening, training, and/or
other aspects of the au pair program. The letters also highlighted
that, despite the problems which have been associated with this
program, many families develop excellent relations with their au pairs
and make considerable efforts to advance the cultural and educational
exchange aspects of the program.
Many letters lamented that other forms of child care were
unaffordable. Some complained about the quality alternative child care.
While the USIA is pleased that the au pair program apparently provides
considerable direct benefit to many American families on the important
matter of affordable child care, the Agency cannot lose sight of the
fact that it has legal authority to operate the au pair program only if
it is primarily a cultural and educational exchange program which
incidentally provides child care. If the program becomes primarily a
child care program, no matter how valuable, it can be legally
maintained as a federal program only if it is transferred to another
agency.
Although a distinct small minority, some letters criticized the
Agency for virtually any effort to regulate the program as undue
interference into family activities. While the Agency has made every
effort to ensure that the regulations are as unburdensome as possible,
it is important to note that certain regulations are necessary before
the Agency is legally permitted to operate this program. Additionally,
none of the regulations will affect individuals involuntarily. The
regulations apply only to families who voluntarily and deliberately
choose to participate in the au pair program.
In light of the comments it has received, the Agency has determined
that the interim regulations published December 14, 1994 should be
amended as follows.
Educational Component
As discussed above, the Agency's statutory authority to facilitate
au pair activities has been the subject of debate for the past eight
years. To achieve compliance with applicable federal law, taking into
account the 1990 GAO opinion, the interim regulations required that au
pair participants pursue six semester hours (or its equivalent) of
academic course work at an accredited post-secondary institution. The
Agency concluded that this requirement is the minimum programmatic
component necessary to comply with the provisions of the Fulbright-Hays
Act. Without this requirement the Agency had determined that it would
not have statutory authority to conduct this activity.
Some responses criticized the Agency for focusing excessively on
traditional forms of educational activities to meet the educational
exchange requirement. These critics claimed the Agency failed to
appreciate the degree and caliber of cultural exchange that results
from daily contact between host families and au pairs. Contrary to
these assertions, the Agency believes it fully appreciates the value of
the experiences identified by these commentators. The Agency recognizes
that the family context provides a unique opportunity for the host
family and au pair to learn about each other's cultures and values.
Additionally, one of the clear benefits of the au pair program is that
it provides many young foreign nationals who otherwise would not have
the opportunity to participate in an exchange program a chance to do
so.
This recognition does not alleviate the Agency's responsibility to
conduct the [[Page 8549]] program in accordance with federal law,
however. The Agency does agree it should not impose unnecessary
rigidity into the requirement and adhered to this principle in drafting
the interim regulations. Accordingly, the Agency does not amend the
regulatory provisions set forth at 22 CFR 514.31(k). Moreover, for
clarification purposes, it is not necessary that the course work be
taken for credit so that audit of such courses is permissible.
Selection, Training and Screening
The au pair program has been governed for over eight years by
voluntary guidelines issued in 1986. Because of Congressional
enactments in 1988 and 1990, the Agency had been essentially barred
from modifying or enforcing the guidelines or otherwise regulating and
monitoring the au pair organizations. Unfortunately, these guidelines,
promulgated for two au pair organizations under a pilot program
overseeing 300 au pairs annually, was deficient for a program that had
grown to eight au pair organizations and 10,000 au pairs annually. By
the summer of 1994, a number of high profile incidents, buttressed by a
series of investigative reports, strongly suggested that the lack of
oversight may in some instances be jeopardizing the safety of host
family children. Evidence also was presented that some au pairs had
been mistreated by host family members. The Agency was equally
disturbed by reports suggesting the program had been portrayed to host
families as a child care program but to young potential au pairs as a
chance to see America. Such a disparity in expectations laid a poor
foundation for either a good exchange experience or for quality child
care. Faced with this history, and under Congressional mandate, the
Agency developed regulations which attempted to provide reasonable
confidence that au pairs assigned to host families had the skills,
experiences and character to meet host families' reasonable
expectations.
One of the two components of the interim regulations drawing the
most comments involved the age requirement for au pairs caring for
infant children. The Agency had specified at 22 CFR 514.31(e)(3) that
an au pair providing such care for a child under the age of two must be
at least twenty-one years of age. The reason for this requirement was
to attempt to ensure that au pairs entrusted with infant children had
some degree of maturity and experience. In imposing this requirement
the Agency recognized that any age limitation was subjective and
inexact; nevertheless, the Agency had considered the requirement
reasonable given all surrounding circumstances.
Many who commented provided persuasive accounts, examples, and
illustrations supporting their beliefs that a 21 year old rule was
unnecessary, especially in light of the Agency's six months of prior
child care experience requirement. These stories helped convince the
Agency that the correlation between age and maturity was marginal at
best and, as a result, the Agency is dropping the twenty-one age
requirement.
Another modification is set forth at 22 CFR 514.31(e) (1)-(3). Many
comments were received which questioned the utility of requiring a
parent to remain in the home for the first week following the au pair's
arrival. Many suggested modifications but agreed that some form of
transition was desirable; others suggested the transition period should
be left entirely to the discretion of the host family.
The Agency's reason for imposing such a requirement was the need to
ensure that the au pair received the benefit of an adequate transition
period and was comfortable with his or her new duties, new home, new
community, and new country. The Agency recognized that a vast majority
of host families would never leave their infants and other children
with an au pair without an adequate adjustment period, but concluded
that requiring a reasonable transition period was essential to the
welfare of both the au pair and the children, especially infants.
In response to the comments received, the Agency is amending 22 CFR
514.31(e)(1) to allow either a parent or other responsible adult to
assist in this transition period and also is reducing the length of
such transition from one week to three days duration. The Agency has
been informed that in many instances this three day period will
encompass the weekend. This increased flexibility addresses the
concerns raised by most of these comments but still provides adequate
assurances of a smooth transition for the au pair. The Agency rejects
those comments suggesting the transition period should be left entirely
to the discretion of the host family based upon the Agency's experience
in these matters which indicates that a prescribed transition period is
necessary, even if it is a short one.
The Agency also is amending the requirement set forth at 22 CFR
514.31(e)(3) to provide for greater flexibility. Originally, the Agency
had required that au pairs placed with families having children under
the age of two must have at least six months documented infant child
care experience. In response to comments suggesting that ``documented''
was too rigid, confusing or otherwise counterproductive, the Agency is
amending this provision by substituting the word ``prior'' for
``documented.''
In response to documented failures over past eight years to
adequately screen potential au pair participants, the Agency set forth
at 22 CFR 514.31(d) specific criteria governing au pair selection.
Based upon comments received, the Agency is amending 22 CFR
514.31(d)(6) by requiring a personality profile rather than a
psychological profile for potential au pair participants. This
amendment is adopted based upon representations made to the Agency that
psychological testing would be unduly burdensome, costly and would be
ineffective. Au pair sponsors suggested the substitution of a
``personality'' profile which they assert would in fact provide a
screening mechanisms sufficient to ensure the au pair applicant's
suitability for child care services. Also set forth in this paragraph
is the requirement that au pair applicants undergo a criminal record
check. Au pair sponsors and the Agency's posts overseas confirm that a
criminal record check as such term is commonly understood in the United
States is not necessarily available in all countries. For those
countries where such records are not readily available, the Agency will
accept the recognized equivalent of a criminal record check for that
country.
Directly related to the screening of au pair participants is
experience and training. A need for some level of uniform training for
au pair participants was recognized and supported by the public
comments received by the Agency. However, the length of this training
was subject to debate. At 22 CFR 514.31(g)(1) the Agency set forth a
requirement that au pair participants receive not less than 16 hours of
child safety instruction. Based upon comments received from au pair
sponsors and the American Red Cross, the Agency is amending this
requirement by reducing the number of hours of such instruction from 16
to 8. The regulation is also amended to permit such training to be
given prior to placement with the host family. This amendment will
permit au pair sponsors to provide child safety training in the au
pair's home country if they choose to do so.
Finally, for the purpose of clarity, the Agency has determined that
amendments to 22 CFR 514.31(h) are needed. This regulation sets forth
requirements governing host family [[Page 8550]] selection for
participation in the au pair program. Given the educational and
cultural exchange overlay of this program, criteria for program
participation is necessary. As published, the interim rule required
that all family members resident in the home be fluent in spoken
English, be personally interviewed, and have successfully passed a
background investigation. The Agency is amending this regulation by
substituting ``host parents'' for ``all family members'' based upon
comments received which convinced the Agency that the change is needed
to avoid confusion and unintended senseless results.
Placement and Orientation
The Agency has reviewed certain requirements governing the terms
and conditions of an au pair placement and has determined that greater
flexibility is both possible and desirable. At 22 CFR 514.31(e)(4) the
Agency amends the interim rule language in order to permit the host
family and au pair the latitude of establishing flexible work hours. As
amended, this regulation will require only that the au pair and host
family have signed a written agreement that outlines the au pair's
obligation to provide not more than 45 hours of child care services per
week.
A small, but vocal, minority expressed strong disagreement with the
interim regulations' nine hour ceiling on an au pair's work day. Many
of these commentators apparently failed to realize that the nine hours
per day limit had been in effect since 1986 and was not new.
Nevertheless, upon reconsidering this provision, the Agency has
concluded that the 45 hour week limit, if aggressively enforced, in
conjunction with other oversight changes, makes the nine hours per day
cap unnecessary. Thus, the Agency amends 22 CFR 514.31(j)(2) by
deleting the requirement that au pairs provide not more than nine hours
of child care services per day. The Agency adopts instead language that
will permit the au pair to provide a ``reasonable'' number of hours per
day. The Agency does not define what is reasonable, leaving this
determination to the host family and au pair in the first instance,
working with the sponsoring au pair organization as necessary. Given
the monthly contact by organizational representatives, the Agency is of
the belief that the documented abuses that prompted the limitation of
hours will be prevented. As a result of striking the nine hour per day
limit, the Agency believes the program will be opened to potential host
families previously unable to participate.
Many comments objected to the requirement that host families and au
pairs attend quarterly conferences or seminars devoted to cross
cultural or child development issues. Some comments criticized the
number as excessive, others disagreed with the nature of the events,
and still others considered any such events as an intrusive nuisance.
The gatherings suggested by the Agency have been a traditional hallmark
of educational and cultural exchange programs, and the Agency does not
agree with the characterization that they are an intrusive nuisance or
otherwise inappropriate for a cultural and educational exchange
program. However, based on the comments, the Agency agrees to amend 22
CFR 514.31(i)(3) to require attendance at one family day event
sponsored by the au pair organization. Thus, not only are the number of
events reduced, but the Agency is making clear it did not intend to
prescribe a narrow agenda to the activity.
Au Pair Employment Status
Much of the criticism of the au pair program is directly related to
the work component that is an integral part of the program. Because of
this, domestic nanny services, and others, have long and loudly
objected to these programs. Critics contend that since 45 hours of work
per week exceeds the traditional 40 hour American work week, it leaves
the au pair insufficient time to either meet the educational exchange
requirement or truly pursue a cultural experience. They assert that the
program displaces American workers and amounts to no more than the
import of cheap foreign labor in the guise of an educational and
cultural exchange program. While the Agency does not agree with this
characterization, it may not ignore these claims. Accordingly, the
Agency has been obligated to examine the question of whether au pairs
are employees subject to the provisions of the Fair Labor Standards
Act. The Agency has also sought the views and guidance of the
Department of Labor on this matter. The Department of Labor has
specifically advised the Agency that an employment relationship is
established. Because the Department of Labor is the Federal agency
entrusted with regulating labor laws, including the definition of
employer and employee and determining when an employment relationship
is established, it is appropriate for the Agency to defer to Department
of Labor in this area. Chevron, U.S.A. versus NRDC, 467 U.S. 837
(1984). To assist the public in their understanding of this matter a
short analysis is set forth.
To fall within the purview of the Fair Labor Standards Act, 29
U.S.C.S. 202 et seq, an individual must meet the threshold requirement
of ``employee'' status. The Act, at 29 U.S.C.S. 203(e)(1) and (g),
defines ``employee'' as an individual employed by an employer and
``employ'' as to suffer or permit to work. Three United States Supreme
Court decisions provide the controlling authority for the determination
of employee status.
In seeking to answer directly the question of who is an employee,
the Court in Bartels versus Birmingham, 332 U.S. 126 (1947) at page 130
pronounced that ``in the application of social legislation employees
are those who as a matter of economic reality are dependent upon the
business to which they render service.'' This concept of ``economic
reality'' was first developed in Rutherford Food Corp. versus McComb,
331 U.S. 722 (1947) which has, along with Bartels, been controlling
authority for almost fifty years.
The decision in Goldberg versus Whitaker House Corp., Inc., 366
U.S. 28 (1961) dictates that determination of an employee relationship
requires review of the circumstances of the whole activity. Pursuant to
this decision, pervasive control exercised by the employer over the
work performed is indicative of employee status. Application of these
judicially established criteria to the au pair and to his or her host
``family'' clearly reveals an employment relationship.
The most obvious indication of employment is the inherent financial
basis upon which the relationship is built. The au pair provides child
care services and currently receives one hundred dollars per week room
and board. The au pair is dependent upon her host ``family'' for her
subsistence. This economic dependence is the measure of ``economic
reality'' set forth in the Rutherford and Bartels decisions, supra. The
Agency believes it to be unlikely that an au pair is going to uproot
his or herself from his or her home country, travel to the United
States, and provide forty-five hours of child care per week for
someone's children without compensation. The au pair provides a service
and expects and receives payment therefore. Designation of the wage
paid as ``pocket money'' is immaterial given that the consideration for
the receipt of the ``pocket money'' is the child care services of the
au pair. Pursuant to Rutherford and Bartels, an au pair is an employee.
A second criterion routinely applied to determine employee status
is that of [[Page 8551]] employer control over the work performed. As
explained in the Goldberg decision, supra, pervasive control exercised
by the employer over the work performed is indicative of an employment
relationship. This concept of control stems from the English common law
theories of master and servant.
As applied today, the concept of control involves the employer
setting the terms and conditions of the employment, i.e., hours of
work, methods of performing the work, break times, uniforms, and the
designation of actual duties. The question of control generally arises
in those situations in which an employer seeks to designate an employee
as an independent contractor and thereby escapes the obligations of
various labor statutes such as the Fair Labor Standards Act.
Designation of the au pair as a ``family'' member would be analogous to
this scenario, when made to avoid the employer/employee relationship.
An au pair's relationship to his or her ``family'' meets the
pervasive control theory of Goldberg. The ``family'' determines what
hours of the day the au pair will work. The ``family'' determines what
additional duties may be necessary for the au pair to perform on a
daily basis. The ``family'' dictates what the child, under the care of
the au pair, will eat, when he will play, and when he will nap.
Pursuant to Goldberg, an au pair is an employee.
Au Pair Wages
The weekly compensation paid to au pairs generated voluminous
comment. All of the comments received objected to an increase in the
weekly wage or stipend from the current $100 to $155 per week. Many
agreed that a substantial increase was appropriate, given that au pairs
have been receiving $100 per week since the inception of the program in
1986. $120-$130 per week was the range mentioned most frequently.
Some of the commentators who criticized the increase to $155 per
week reprimanded the Agency for promoting a 55 percent increase,
asserting that the decision reflected an insensitivity to the needs of
American families. The Agency believes these critics misunderstood the
interim regulations and the purpose for the formula proposed in those
regulations.
As explained in the interim final rulemaking published December 14,
1994, the $155 amount was established by examining Department of Labor
regulations governing the payment of minimum wage to live-in domestic
employees. The $155 amount reflected minimum wage less a fixed credit
of $36 permitted under current Department of Labor regulations for room
and board. This regulation, set forth at 29 CFR 552.100 also provides
for an alternative calculation of the credit for room and board based
upon actual cost.
The Agency noted in the interim rule that the $36 credit was based
upon a regulation published in 1979 and that the Agency was of the
opinion that the credit should be substantially higher. The Department
of Labor is of the same opinion as evidenced by its proposed rule
published in the Federal Register on December 30, 1993 at page 69312.
In this proposed rule the Department of Labor sought to amend 29 CFR
552.100 to reflect the increase in the cost of room and board by
determining the permissible credit as a percentage of the hourly
minimum wage. This proposed rule has not been finalized.
In an attempt to document costs, certain au pair organizations
conducted a nationwide survey of their host families to determine the
average cost of room and board provided to au pairs. While not
endorsing the methodology used in this survey, the Agency is
comfortable with the results presented. This survey suggests that the
average cost for room and board is approximately $65 per week. This
survey provides some measure of objective evidence that the allowance
for room and board is substantially higher than the 1979 allowance of
$36 per week.
As stated, 29 CFR 552.100 provides two methods for recognizing the
cost of room and board provided live-in domestic employees. The first
method, which allows a fixed $36 credit is outdated but still legally
applicable. The second method, which allows for a deduction against the
minimum wage based on the actual cost of room and board.
The public comments received have convinced the Agency that a
credit for room and board based upon actual costs is preferred by the
majority of host families. However, the programmatic need for a uniform
wage remains. Thus, in order to balance the preference of host families
against the programmatic need for a uniform wage, the Agency will rely
on the Department of Labor's methodology as set forth in its proposed
rule of December 30, 1993. To this end, and until this Department of
Labor regulation is adopted as final, the Agency will permit a credit
for room and board based upon actual cost but not to exceed $76 per
week. Upon finalization of this Department of Labor regulation, the
Agency will adopt the fixed credit method and thereby alleviate the
family's obligation to maintain records.
The Agency concludes this approach will allow the weekly wage or
stipend to automatically adjust, using a formula based on the minimum
wage and room and board costs routinely calculated by the Department of
Labor. The Agency believes this method is fair to host families and au
pairs, and will ensure adherence to federal law. Moreover, once the
Department of Labor regulations are finalized, this approach will
eliminate the need for host families to keep individualized records.
Additionally, it will not compel the federal government to expend
scarce resources to regulate or otherwise oversee this portion of the
program.
Based on the comments received and the above discussions, the
Agency is of the opinion that a weekly stipend or wage of not less than
$115 is consistent with Fair Labor Standards Act requirements governing
payment of minimum wage and is appropriate for the present time.
Other Statutory Considerations
Finally, a question has arisen regarding the Agency's statutory
authority to impose a performance bond. The program guidelines
governing au pair placements for the past eight years have required
that the au pair participants place with the au pair sponsor a bond in
the amount of five hundred dollars. This bond was forfeited if the au
pair participant failed to successfully complete the agreed upon one
year program or failed to return to their home country.
In discussions with the Department of Labor regarding payment of
minimum wage, the Agency was advised by the Department that this bond
requirement was a minimum wage violation. For the reasons discussed
above, under the Chevron doctrine, deference to Department of Labor's
interpretation is appropriate. Additionally the Agency's subsequent
review of this matter has led it to conclude that it is without
statutory authority to impose a bond. Pursuant to provisions of the
Immigration and Naturalization Act set forth at 8 U.S.C. 1184(a) the
Attorney General is vested with authority governing the admission of
aliens into the United States and the giving of a bond to insure the
aliens maintenance of status and departure from the United States. The
Director of USIA is without such authority and the regulatory provision
set forth at 22 CFR 514.31(1) requiring a performance bond is therefore
deleted.
List of Subjects in 22 CFR Part 514
Cultural exchange programs.
[[Page 8552]] Dated: February 8, 1995.
Les Jin,
General Counsel.
Accordingly, the interim rule amending 22 CFR part 514 which was
published at 59 FR 64296 on December 14, 1994, is adopted as a final
rule with the following change:
PART 514--EXCHANGE VISITOR PROGRAM
1. The authority citation for part 514 continues to read as
follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1258; 22 U.S.C. 1431-
1442, 2451-2460; Reorganization Plan No. 2 of 1977, 42 FR 62461, 3
CFR, 1977 Comp. p. 200; E.O. 12048 43 FR 13361, 3 CFR, 1978 Comp. p.
168; USIA Delegation Order No. 85-5 (50 FR 27393).
2. Part 514 is amended by revising Sec. 514.31 to read as follows:
Sec. 514.31 Au pairs.
(a) Introduction. These regulations govern Agency-designated
exchange visitor programs under which foreign nationals are afforded
the opportunity to live with an American host family and participate
directly in the home life of the host family while providing limited
child care services and attending a U.S. post-secondary educational
institution.
(b) Program designation. The Agency may, in its sole discretion,
designate bona fide programs satisfying the objectives set forth in
paragraph (a) of this section. Such designation shall be for a period
of two years and may be revoked by the Agency for good cause.
(c) Program eligibility. Sponsors designated by the Agency to
conduct au pair exchange program shall:
(1) Limit the participation of foreign nationals in such programs
to not more than one year;
(2) Limit the number of hours an au pair participant is obligated
to provide child care services to not more than 45 hours per week;
(3) Require that the au pair participant enrolls in a U.S.
institution of higher education for not less than six semester hours of
academic credit or its equivalent;
(4) Require that all officers, employees, agents, and volunteers
acting on their behalf are adequately trained and supervised;
(5) Require that the au pair participant is placed with a host
family within one hour's driving time of the home of the local
organizational representative authorized to act on the sponsor's behalf
in both routine and emergency matters arising from the au pair's
participation in their exchange program;
(6) Require that each local organizational representative maintain
a schedule of personal monthly contact (or more frequently as required)
with each au pair and host family for which he or she is responsible;
(7) Require that local organizational representatives not devoting
their full time and attention to their program obligations are
responsible for no more than fifteen au pairs and host families; and
(8) Require that each local organizational representative is
provided adequate support services by a regional organizational
representative.
(d) Au pair selection. In addition to satisfying the requirements
of Sec. 514.10(a), sponsors shall ensure that all participants in a
designated au pair exchange program:
(1) Are between the ages of 18 and 26;
(2) Are a secondary school graduate, or equivalent;
(3) Are proficient in spoken English;
(4) Are capable of fully participating in the program as evidenced
by the satisfactory completion of a physical;
(5) Have been personally interviewed, in English, by an
organizational representative; and
(6) Have successfully passed a background investigation that
includes verification of school, three, non-family related personal and
employment references, a personality profile and a criminal record
check or its recognized equivalent.
(e) Au pair placement. Sponsors shall secure, prior to the au
pair's departure from the home country, a host family placement for
each participant. Sponsors shall not:
(1) Place an au pair with a family unless the family has
specifically agreed that a parent or other responsible adult will
remain in the home for the first three days following the au pair's
arrival;
(2) Place an au pair with a family having a child aged less than
three months unless a parent or other responsible adult is present in
the home;
(3) Place an au pair with a host family having children under the
age of two, unless the au pair has at least six months of prior infant
child care experience;
(4) Place the au pair with a family unless a written agreement
between the au pair and host family outlining the au pair's obligation
to provide not more than 45 hours of child care services per week has
been signed by both; and
(5) Place the au pair with a family who cannot provide the au pair
with a suitable private bedroom.
(f) Au pair orientation. In addition to the orientation
requirements set forth herein at Sec. 514.10, all sponsors shall
provide au pairs, prior to their departure from the home country, with
the following information:
(1) A copy of all operating procedures, rules, and regulations,
including a grievance process, which govern the au pair's participation
in the exchange program;
(2) A detailed profile of the family and community in which the au
pair will be placed;
(3) A detailed profile of the educational institutions in the
community where the au pair will be placed, including the financial
cost of attendance at these institutions; and
(4) A detailed summary of travel arrangements.
(g) Au pair training. Sponsors shall provide the au pair
participant with child development and child safety instruction, as
follows:
(1) Prior to placement with the host family, the au pair
participant shall receive not less than eight hours of child safety
instruction; and
(2) Prior to placement with the American host family, the au pair
participant shall receive not less than twenty-four hours of child
development instruction.
(h) Host family selection. Sponsors shall adequately screen all
potential host families and at a minimum shall:
(1) Require that the host parents are U.S. citizens or legal
permanent residents;
(2) Require that host parents are fluent in spoken English;
(3) Require that all adult family members resident in the home have
been personally interviewed by an organizational representative;
(4) Require that host parents have successfully passed a background
investigation including employment and personal references;
(5) Require that the host family has adequate financial resources
to undertake hosting obligations; and
(6) Provide a written detailed summary of the exchange program and
the parameters of their and the au pair's duties, participation, and
obligations.
(i) Host family orientation. In addition to the requirements set
forth at Sec. 514.10, sponsors shall:
(1) Inform all host families of the philosophy, rules, and
regulations governing the sponsor's exchange program;
(2) Provide all selected host families with a copy of Agency-
promulgated Exchange Visitor Program regulations;
(3) Advise all selected host families of their obligation to attend
at least one family day conference to be sponsored by their au pair
organization during the course of the placement year. Host
[[Page 8553]] family attendance at such gathering is a condition of
program participation and failure to attend will be grounds for
possible termination of their continued or future program
participation; and
(4) Require that the organization's local counselor responsible for
the au pair placement contacts the host family and au pair within
forty-eight hours of the au pair's arrival and meets, in person, with
the host family and au pair within two weeks of the au pair's arrival
at the host family' home.
(j) Stipend and hours. Sponsors shall require that au pair
participants:
(1) Are compensated at a rate of not less than $115.00 per week;
(2) Do not provide more than a reasonable number of hours of child
care on any given day;
(3) Receive a minimum of one and a half days off per week in
addition to one complete weekend off each month; and
(4) Receive two weeks of paid vacation.
(k) Educational component. Sponsors shall require that during the
period of program participation, all au pair participants are enrolled
in an accredited post-secondary institution for not less than six hours
of academic credit or its equivalent. As a condition of program
participation, host family participants must agree to facilitate the
enrollment and attendance of the au pair and to pay the cost of such
academic course work in an amount not to exceed $500.
(l) Monitoring. Sponsors shall fully monitor all au pair exchanges,
and at a minimum shall:
(1) Require monthly personal contact by the local counselor with
each au pair and host family for which the counselor is responsible.
Counselors shall maintain a record of this contact;
(2) Require quarterly contact by the regional counselor with each
au pair and host family for which the counselor is responsible.
Counselors shall maintain a record of this contact;
(3) Require that all local and regional counselors are appraised of
their obligation to report unusual or serious situations or incidents
involving either the au pair or host family; and
(4) Promptly report to the Agency any incidents involving or
alleging a crime of moral turpitude or violence.
(m) Reporting requirements. Along with the annual report required
by regulations set forth at Sec. 514.17, sponsors shall file with the
Agency the following information:
(1) A summation of the results of an annual survey of all host
family and au pair participants regarding satisfaction with the
program, its strengths and weaknesses;
(2) A summation of all complaints regarding host family or au pair
participation in the program, specifying the nature of the complaint,
its resolution, and whether any unresolved complaints are outstanding;
(3) A summation of all situations which resulted in the placement
of an au pair participant with more than one host family;
(4) A report by a certified public accountant attesting to the
sponsor's compliance with the procedures and reporting requirements set
forth in this subpart;
(5) A report detailing the name of the au pair, his or her host
family placement, location, and the names of the local and regional
organizational representatives; and
(6) A complete set of all promotional materials, brochures, or
pamphlets distributed to either host family or au pair participants.
(n) Sanctions. In addition to the sanctions provisions set forth at
Sec. 514.50, the Agency may undertake immediate program revocation
procedures upon documented evidence that a sponsor has failed to:
(1) Comply with the au pair placement requirements set forth in
paragraph (e) of this section;
(2) Satisfy the selection requirements for each individual au pair
as set forth in paragraph (d) of this section; and
(3) Enforce and monitor host family's compliance with the stipend
and hours requirements set forth in paragraph (j) of this section.
[FR Doc. 95-3597 Filed 2-14-95; 8:45 am]
BILLING CODE 8230-01-M
