J Exchange Program





[Federal Register: June 27, 1997 (Volume 62, Number 124)]
[Rules and Regulations]               
[Page 34632-34634]
From the Federal Register Online via GPO Access

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UNITED STATES INFORMATION AGENCY

22 CFR Part 514
 
Exchange Visitor Program

AGENCY: United States Information Agency.

ACTION: Interim final rule with request for comment.

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SUMMARY: The Agency is amending existing regulations in order to 
enhance the Agency's oversight of au pair programs. These amendments 
provide additional specificity to existing regulations that will 
facilitate consistent compliance with programmatic requirements. 
Specifically, these amendments will further define the selection and 
screening requirements for au pair participants and require that the 
participant attend rather than merely enroll for six hours of academic 
credit. Further, the number of hours an au pair may provide child care 
services is limited to no more than 10 hours per day and forty-five in 
any given week.

DATES: This rule is effective September 1, 1997. Written comments 
regarding this rule will be accepted July 28, 1997.

ADDRESSES: Comments regarding this rule must be presented in
duplicate and addressed as follows: United States Information Agency,
Office of the General Counsel, Rulemaking 210, 301 4th Street, SW.,
Washington, DC 20547.

FOR FURTHER INFORMATION CONTACT:   Exchange Visitor
Program Services, Program Designation Branch, United States
Information Agency, 301 4th Street, SW., Washington, DC 20547; 
Telephone (202) 401-9810.

SUPPLEMENTARY INFORMATION: In consultation with the eight
sponsors  designated by the Agency to conduct au pair programs, the
Agency is amending the regulations that govern the administration of au
pair programs. These regulations were adopted February 15, 1995 (60 FR
8547) following an extensive public comment period that generated more
than 3,000 public comments. As is often the case in the promulgation of 
regulations governing a program-based activity such as the au pair 
program, the need for further sepcificity regarding regulatory 
implementation and compliance has arisen. Accordingly, the Agency has 
worked with the eight designated sponsors to amend these regulations to 
provide such additional specificity.

First, the Agency is amending the existing requirement set forth at 
22 CFR 514.31(c)(3) to ensure that au pair participants attend rather 
than merely enroll for six hours of academic credit at an institution 
of higher education. The requirement that au pair participants pursue 
academic course work is considered to be the foundation underlying the 
au pair program. This requirement ensures that the young adults 
participating in this program are engaged in activities other than 
child care and provides the opportunity for the au pair to interact 
with persons their own age and gain further insight regarding the 
United States and its people.

Secondly, the Agency is amending the requirements governing the 
selection and placement of au pair participants set forth at 22 CFR 
514.31(d) and (h) in order to enhance the ability of an au pair host 
family to more actively participate in the selection of the au pair 
participant that the family will host. A report by the organizational 
representative interviewing the au pair participant will be provided to 
the host family. With this information and the references also provided 
to the host family, such family may develop a more informed opinion 
regarding the au pair participant's potential compatibility with the 
family. The Agency anticipates that host families may contact the 
listed references as they deem appropriate. Further, amendment of this 
regulation will more clearly define the requirement that an au pair 
participant successfully pass a personality profile. This amendment 
will require that the au pair successfully complete a personality 
profile based on a psychometric test that measures the differences in 
characteristics among applicants against those characteristics 
considered most important to successfully participate in the au pair 
program. 

In concert with these changes that will assist the host family in 
selecting an au pair, the Agency is also introducing requirements set 
forth at 22 CFR 514.31 (f) and (i) that will require au pair sponsors 
to provide all host families and au pair participants with a statement 
from the Agency regarding the au pair program itself. The Agency 
believes that the few complaints that arise from this program are often 
related to the lack of a full and complete understanding of the program 
by either the host family or the au pair. By providing a statement from 
the Agency that sets forth an overview of the program, the Agency is of 
the opinion that many conflicts between the au pair, the sponsoring 
organization, and the au pair will be avoided.

The Agency has also reviewed the training and experience requirements
for au pair participants and amends 22 CFR 514.31 (e), (f) and (g) to
enhance and clarify such requirements. To this end, au pair participants
that will care for children under the age of two must have no less than
200 hours of documented infant child care experience. This experience
must involve the direct care and supervision of infant children. Further,
au pairs will receive, prior to departure from their home country, a
pre-departure package that both clearly describes their prospective child
care rsponsibilities and enumerates unacceptable behavior. Au pairs will
continue to receive not less than eight hours of child safety instruction
and not less than twenty-four hours of child development instruction.
The Agency is, however, amending this requirement to specifically
require that no less than four hours of the child safety instruction be
infant related and that not less than four of the twenty-four hours of child
development instruction be devoted to training for the care of children
under the age of two. Child safety instruction shall be provided by the
American Red Cross or other recognized experts in the field of safety
instruction.  The child development instruction is expected to include
topics such as stress management and Shaken Baby Syndrome.

Finally, the Agency is amending 22 CFR 514.31(j) which governs an 
au pair's wages and hours. The United States Department of Labor has 
determined that au pair participants are covered under the provisions 
of the Fair Labor Standards Act and therefore must receive federal 
minimum wage. The Agency is amending this regulation to ensure that 
there is no future confusion regarding the payment of minimum wage. 
Finally, this regulation is amended to specify that an au pair may not 
provide more than 10 hours of child care on any given day or more than 
45 hours of child care in any given week. This specific provision 
amends the existing requirement that an au pair not provide more than a 
reasonable number of hours per day. Amendment is necessary based
upon the Agency's experience that indicates the existing standard is
subject to abuse and a source of dispute.

Comment

The Agency invites comments regarding this interim final rule 
notwithstanding the fact that it is under no legal requirement to do 
so. The oversight and administration of the Exchange Visitor Program 
are deemed to be a foreign affairs function of the Untied States 
Government. The Administrative Procedures Act, 5 U.S.C. 553(a)(1) 
(1989), specifically exempts foreign affairs functions from the 
rulemaking requirements of the Act.

The Agency will accept comments for 30 days following publication 
of this interim final rule. A final rule will be adopted following 
Agency review of all comments received.

In accordance with 5 U.S.C. 605(b), the Agency certifies that this 
rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not considered to be 
a major rule within the meaning of section 1(b) of E.O. 12291, nor does 
it have federal implications warranting the preparation of a Federalism 
Assessment in accordance with E.O. 12612.

List of Subjects in 22 CFR Part 514

    Cultural exchange programs.

     Dated: June 23, 1997
     Les Jin,
     General Counsel.

    Accordingly, 22 CFR part 514 is amended as follows:

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.  Section 514.31 is amended by revising paragraphs (c), (d), (e),
     (f), (g), (h) and (j) to read as follows:


Sec. 514.31  Au pairs.

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 (c) Program eligibility. Sponsors designated by the Agency to
     conduct an 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 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;
 (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
     record of all personal monthly contacts (or more frequently as
     required) with each au pair and host family for which he or she is
     responsible and issues or problems discussed; 
 (7) Require that all local organizational representatives contact au
     pair participants and host families twice monthly for the first two
     months following a placement other than the initial placement for
     which the au pair entered the United States. 
 (8) 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
 (9) 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 who shall prepare a report of the interview which
     shall be provided to the host family; and
 (6) Have successfully passed a background investigation that includes
     verification of school, three, non-family related personal and
     employment references, a criminal background check or its
     recognized equivalent and a personality profile. Such personality
     profile will be 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.
 (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 200 hours of documented
     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,
     grievance procedures, and the Agency's written statement
     regarding the au pair program which govern the au pair's
     participation in the exchange program;
 (2) 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;
 (4) A detailed summary of travel arrangements; and
 (5) A complete and thorough pre-departure package clearly describing
     child care responsibilities and expectations and enumerating
     behavior that is unacceptable.
 (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 no
     less than 4 of which shall be infant-related; 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 of which no less than 4 shall be devoted to
     specific training for children under the age of two.
 (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 character
     references;
 (5) Require that the host family has adequate financial resources to
     undertake all hosting obligations;
 (6) Provide a written detailed summary of the exchange program and
     the parameters of their and the au pair's duties, participation, and
     obligations; and
 (7) Provide the host family with the prospective au pair participant's
     complete application, including all references.
 (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 and provide all families
     with a copy of the Agency's written statement regarding the au pair
     program;
 (2) Provide all selected host families with a complete copy of
     Agency-promulgated Exchange Visitor Program regulations
     including the published supplemental information; 
 (3) Advise all selected host families of their obligation to attend at
     least one family day conference to be sponsored by the au pair
     organization during the course of the placement year. Host family
     attendance at such a 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) Wages and hours. Sponsors shall require that au pair participants:
 (1) Are compensated at a weekly rate based upon 45 hours per week
     and paid in conformance with the requirements of the Fair Labor
     Standards Act as interpreted and implemented by the United States
     Department of Labor;
 (2) Do not provide more than 10 hours of child care on any given day,
     nor more than 45 hours of child care in any one week; 
 (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.
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