Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 74071 

March 14, 2023 (88 FR 15864). These 

provisions are found in the NRC’s 

regulations under section 73.15 of title 

10 of the Code of Federal Regulations 

(10 CFR) and 10 CFR 73.17. 

Proposed Revision 1 to RG 5.86 

provides acceptable methods that 

eligible applicants and licensees 

(collectively referred to as licensees in 

this DG) may use to request and use 

either stand-alone preemption authority 

or combined preemption authority and 

enhanced weapons authority and to 

conduct related firearms background 

checks. DG–5081 also includes 

examples, considerations, and guidance 

to assist licensees and their security 

personnel in understanding their 

responsibilities in implementing the 

provisions of 10 CFR 73.15 and 10 CFR 

73.17. 

Following the publication of the final 

rule and RG 5.86, the NRC staff 

conducted several pre-implementation 

workshops with licensees. The NRC 

staff also participated in industry-led 

forums and symposiums in May and 

June 2023. In these meetings industry 

raised questions about RG 5.86 and 

identified potential inconsistencies and 

areas where additional clarification 

would be beneficial to licensees to 

implement the Enhanced Weapons rule 

effectively and efficiently. The NRC staff 

has reviewed the issues raised by 

industry and agrees that further 

clarification, revision, and 

supplementation of the guidance 

contained in RG 5.86 will be of value. 

Accordingly, the NRC staff is proposing 

to conduct limited-scope revisions to 

RG 5.86 to address these issues, 

including providing notice and 

opportunity for public comment on the 

proposed revisions. 

To assist with stakeholder review of 

the limited scope changes to DG–5081, 

staff notes the following changes have 

been proposed: 

Section B, ‘‘Discussion’’ Topics: 

• ‘‘Reason for Issuance’’—updated to 

reflect rationale for changes to the RG. 

• ‘‘Standalone Preemption Authority 

and Combined Preemption Authority 

and Enhanced Weapons’’—updated to 

clarify the three potential pathways by 

which a licensee could obtain combined 

preemption authority and enhanced 

weapons authority. 

• ‘‘Firearms Background Check, 

paragraph 1’’—clarified background 

check requirements for licensee security 

personnel who are not assigned duties 

requiring access to covered weapons. 

• ‘‘Firearms Background Check, 

paragraphs 10–12’’—clarified 

requirements for licensee security 

personnel’s access to covered weapons 

during and after the 10 CFR 73.15 

approval process. 

Section C, ‘‘Staff Regulatory 

Guidance’’: 

• Position 5, ‘‘Completion of Training 

and Qualification before Use of 

Enhanced Weapons,’’ paragraph 1— 

modified language in first sentence to 

say ‘‘using.’’ 

• Position 5, paragraph 2—clarified 

training requirements for staff with 

access to enhanced weapons who are 

not assigned duties that would require 

them to use enhanced weapons. 

• Position 6.1, ‘‘General 

Requirements for Fingerprints and 

Firearms Background Checks,’’ example 

19—clarified the conditions that must 

be met in order to exempt licensees 

from the requirement to perform a new 

firearms background check for security 

personnel transferring from one licensed 

facility to another licensed facility. 

The staff is also issuing for public 

comment a regulatory analysis (ADAMS 

Accession No. ML23200A284). The staff 

developed a regulatory analysis to 

assess the value of issuing or revising an 

RG, as well as alternative courses of 

action. 

As noted in the Federal Register on 

December 9, 2022 (87 FR 75671), this 

document is being published in the 

‘‘Proposed Rules’’ section of the Federal 

Register to comply with publication 

requirements under 1 CFR chapter I. 

III. Backfitting, Forward Fitting, and 

Issue Finality 

Issuance of DG–5081 as a final RG 

would not constitute backfitting as that 

term is defined in 10 CFR 50.109, 

‘‘Backfitting,’’ 10 CFR 70.76, 

‘‘Backfitting,’’ or 10 CFR 72.62, 

‘‘Backfitting,’’ and as described in NRC 

Management Directive (MD) 8.4, 

‘‘Management of Backfitting, Forward 

Fitting, Issue Finality, and Information 

Requests,’’ to affect the issue finality of 

an approval issued under 10 CFR part 

52, ‘‘Licenses, Certifications, and 

Approvals for Nuclear Power Plants;’’ or 

constitutes forward fitting as that term 

is defined and described in MD 8.4. The 

staff also does not intend to use the 

guidance to support NRC staff actions in 

a manner that constitutes forward fitting 

as that term is defined and described in 

MD 8.4. If a licensee believes that the 

NRC is using this proposed revision to 

RG 5.86 in a manner inconsistent with 

the discussion in the Implementation 

section of DG–5081, then the licensee 

may file a backfitting or forward fitting 

appeal with the NRC in accordance with 

the process in MD 8.4. 

IV. Submitting Suggestions for 

Improvement of Regulatory Guides 

A member of the public may, at any 

time, submit suggestions to the NRC for 

improvement of existing RGs or for the 

development of new RGs. Suggestions 

can be submitted on the NRC’s public 

website at https://www.nrc.gov/readingrm/doc-collections/reg-guides/ 

contactus.html. Suggestions will be 

considered in future updates and 

enhancements to the ‘‘Regulatory 

Guide’’ series. 

Dated: October 24, 2023. 

For the Nuclear Regulatory Commission. 

Stephen M. Wyman, 

Acting Chief, Regulatory Guide and Programs 

Management Branch, Division of Engineering, 

Office of Nuclear Regulatory Research. 

[FR Doc. 2023–23795 Filed 10–27–23; 8:45 am] 

BILLING CODE 7590–01–P 

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. 

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. 


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74072 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

• Email: JExchanges@state.gov. 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: 

DesignationAuPair@state.gov. 

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. § 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 highquality 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 

§ 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 


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1Exchange Visitor Program—General Provisions, 

79 FR 60307 (Oct. 6, 2014). 

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 parttime 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 ‘‘parttime’’ 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

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 thirdparty 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 


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74074 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

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 § 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 

§ 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 

§ 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. 


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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 (§ 62.31(f)). There is also a 

proposed paragraph for host family 

orientations (§ 62.31(i)). Proposed 

§ 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 predeparture 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 § 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/internationaltaxpayers/taxation-of-nonresidentaliens. 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 § 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 § 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 

§ 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 


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(§ 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 → Current J–1 

visa holders → Other Resources → 

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 longlasting 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 § 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 § 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 § 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 


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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 wellbeing. 

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 


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74078 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

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 § 62.31(n)(4) to reflect a fourtiered 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, state, or local minimum wage Au pair receives 

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. 

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, state, or local min wage Au pair receives 

Tier 1 ................ $7.25–$10.00 per hour ............................................................................................................................... $10 per hour. 

Tier 2 ................ $10.01–$14.00 per hour ............................................................................................................................. $14 per hour. 

Tier 3 ................ $14.01–$17.00 per hour ............................................................................................................................. $17 per hour. 

Tier 4 ................ $17.01–$20.00 per hour ............................................................................................................................. $20 per 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 § 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 × $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 × $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. 


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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 parttime 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 parttime 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 § 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 inperson classes or taking a subset of 

classes online during their program. Inperson 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 

(§ 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 (§ 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. 


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2https://educationdata.org/cost-of-a-collegeclass-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-percredit-hour (‘‘Two-year public schools, or 

community colleges, charge the least at just under 

$120 per credit hour.’’). 

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 (§ 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 × 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 

(§ 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. 

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 

§ 62.2 (e.g., overseas agents or partners) 

that assist them in fulfilling the program 

responsibilities under § 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 sponsorapproved 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 nonrefundable, 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 § 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 


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3The 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). 

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 wellconsidered 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 FulbrightHays 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. 

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 


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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 


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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 

§ 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 § 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 § 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 highquality 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 


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4Foreign 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. 

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 prearrival 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 fourtiered 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 parttime 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. 

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 


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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 × 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 

× 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 


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× $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 × $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 × 52 weeks = 

13 hours × $31.50 = $409.50, or an 

aggregate of $409.50 × 21,500 host 

families = $8,804,250). 

Sponsor and host family new costs 

and transfers under this rulemaking are 

detailed as follows: 

Purpose (§ 62.31(a)). There are no new 

costs associated with this provision. 

Program designation (§ 62.31(b)). 

There are no new costs associated with 

this provision. 

Program conditions (§ 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 § 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 (§ 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 (§ 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 (§ 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 × 8 hours = $583.76 per sponsor or 

$8,172.64 for all fourteen sponsors. 

Au pair training (§ 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 jurisdictionallyspecific 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 


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5See https://www.driverseddirect.com/californiaonline-drivers-ed.aspx?ProductID=33&

STATE=CA&DC=wow27off&hc=A&source=

GOOGLE_DE-NEWBTW_03242022RSAMAXPIN_

HCA_DCwow27off&gclid=EAIaIQobChMIifLO5bCg_

gIVTBbUAR0VGwS5EAAYAiAAEgJYkvD_BwE. 

6See https://www.idrivesafely.com/new-york/5- 

hour-pre-licensing-online. 

7See https://www.criminalwatchdog.com/faq/ 

how-much-does-background-check-cost; https://

www.sentrylink.com/web/criminalcheck.action?gclid=EAIaIQobChMIt_zk5MWL_

gIVK__jBx0lYQmgEAAYASAAEgIsNfD_BwE. 

estimates online driving courses cost 

will vary, for example, from $12 in 

California 5 to $45 in New York.6

Host family selection (§ 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. 

Host family orientation (§ 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 × 16 hr) + ($72.97/hr × 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 (§ 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 nonrecurring 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 

(§ 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 (§ 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 (§ 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 × 52 weeks = 13 hours × $31.50 

= $409.50, or an aggregate of $409.50 × 

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 (§ 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 


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expenses. Host families under the 

current regulations pay an estimated 

$10,140 ($195 a week × 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 × 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 × 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 × 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 × 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 

× 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 (§ 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 × $700 increase would be 

$15,050,000. 

Monitoring (§ 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 (§ 62.31(q)). 

The new regulation does not impose any 

new requirements. 

Reporting requirements (§ 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 countryspecific 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 (§ 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: 


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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 countryspecific 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 × 14 sponsors + 13 hours 

per host family × 21,500 host families). 

(8) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 


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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 

■ 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. 

■ 2. Revise § 62.31 to read as follows: 

§ 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 nonincome-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 § 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. 


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(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 

§ 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) Predeparture materials. In addition to the 

requirements in § 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 

§ 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 


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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: 


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(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 eighthour 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 


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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 fulltime 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 maximumhours 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 


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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 inkind 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, or local min 

wage Au pair receives 

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. postsecondary 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 twelvemonth 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. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
74096 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

(i) For the initial twelve-month 

program and for a nine- or twelvemonth 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 twelvemonth 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 inperson 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 inperson 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 § 62.17) via Pay.gov. 

(r) Reporting requirements. (1) In 

addition to the reporting requirements 

set forth in § 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 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 § 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 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 0, 1, 2, and 101 

[WT Docket No. 20–133; DA 23–988; FR ID 

181235] 

Wireless Telecommunications Bureau 

Seeks To Refresh the Record in 70/80/ 

90 GHz Bands Proceeding 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) seeks comment to refresh 

the record in the rulemaking on 

Modernizing and Expanding Access to 

the 70/80/90 GHz Bands (85 FR 40168, 

July 6, 2020; 86 FR 60436, Nov. 2, 2021) 

to address the potential for use of the 

71–76 GHz, 81–86 GHz, 92–94 GHz, and 

the 94.1–95 GHz (70/80/90 GHz) bands 

to provide broadband internet access to 

consumers and communities that may 

otherwise lack robust, consistent 

connectivity. Specifically, the 

Commission previously proposed new 

and updated rules to further enable nonFederal uses of the 70/80/90 GHz bands, 

which are currently allocated on a coprimary basis for Federal and nonFederal use. This document seeks to 

refresh the overall record in the docket 

and seeks comment, in particular, on 

the proposals made in a filing by the 

National Telecommunications and 

Information Administration (NTIA) on 

October 17, 2023 (NTIA October 17 

Filing). In that filing, NTIA proposed 

technical rules and interference 

mitigation measures, including 

operating parameters for links to 

endpoints in motion in 71–76 GHz and 

81–86 GHz, to protect current or 


khammond on DSKJM1Z7X2PROD with PROPOSALS