Au Pair Program Clarifying Regulation

Background:
On October 30, 2023, the Bureau of Educational and Cultural Affairs (ECA) at the Department of State (DOS) released a notice of proposed rulemaking (NPRM ) outlining significant regulatory changes to the federal au pair cultural exchange program. These changes were only proposed (not enacted) and put forward for public comment.

The Alliance has long supported modernizing the Au Pair Program regulations for the benefit of au pairs and host families. We are very concerned, however, that the proposed regulations threaten to significantly harm an exchange program with a nearly 40 track record of success. Specifically, if enacted, the proposed regulation would:

• Strip away the essential cultural exchange nature from the program, turning it into a domestic labor program
• Diminish participation in the Au Pair Program by 70-90% by making it far too expensive and outpricing many American families, including middle-class and military families, and essential workers and first responders, and thus concurrently diminishing the number of au pairs who could participate
• Negatively impact the Department of State’s public diplomacy goals

Alliance Response:
In response to these proposed changes, the Alliance, along with our members and fellow program advocates, took the following actions:

• Initiated request to extend comment period: The initial comment period for the proposed rule was only 60 days, set to end on December 29, 2023. Given the limited amount of time this allowed concerned parties to share their thoughts, the Alliance sent a letter to ECA requesting the comment period be extended by at least 30 days. This request directly led to a 30-day extension of the comment period, with a new deadline of January 28, 2024.
• Led comment letter writing campaign: The Alliance launched a grassroots letter writing campaign that led to 5,233 comment letters being sent to DOS.
• Led Senate letter writing campaign : The Alliance also led a grassroots letter campaign for constituents to write their Senators and express support for the program, which led to 4,286 advocates reaching out to all 100 Senators.
• SubmittedAlliance comment letter: After extensive consultation and collaboration with au pair members, the Alliance submitted a comprehensive comment letter outlining our overarching concerns with the proposed rule, sharing our reactions to specific changes, and outlining recommendations. In particular, we noted:
  – That the proposed regulations would make the program too expensive and too administratively burdensome for most host families to participate. Participation by both host families and au pairs would thus plummet, irreparably harming the program and threatening its existence.
  – That we believe any future version of this proposed regulation should not be an unnecessarily sweeping re-regulation of the program, but rather a narrowly-tailored program update that focuses on:
  – A clear statement of federal preemption to clarify any confusion regarding the fact that the federal regulations of the program always have and continue to preempt all state and local labor laws as to the program’s terms and conditions, including local wage and hour laws that may otherwise seek to regulate au pair compensation;
  – A reasonable and uniform increase to the au pair stipend
  – An update to the educational component to include volunteer and online opportunities and with a reasonable increase to the allowance families would pay.
• Facilitated research and comment from regulatory experts: In partnership with the Alliance’s au pair members, we worked with the firm McDermott Will & Emery to gather data on how the proposed changes would impact au pairs and host families, as well as to submit further comment.

Congressional Response:

• Bipartisan Senate sign-on letter in support of the Au Pair Program: On December 15, 2023, Senators Shaheen (D-NH) and Tillis (R-NC) sent a bipartisan letter to the Department of State expressing support for the Au Pair Program and concern about the proposed regulation. The final letter was co-signed by: Senators Coons (D-DE), Cruz (R-TX), Duckworth (D-IL), Risch (R-ID), and Van Hollen (D-MD).

Partner Response:

• U.S. Small Business Administration comment letter

• Au Pair Program Eyed for Wage, Hour Revamp in New US Proposal – Bloomberg Law
• Au Revoir, Au Pairs – The Wall Street Journal
• Au Pair Wage, Hour Overhaul Public Comment Period Extended – Bloomberg Law
• WILL THE AU PAIR PROGRAM CONTINUE TO BE AN AFFORDABLE OPTION FOR MILITARY FAMILIES? – National Military Family Association
• Cost of Hiring Au Pairs Could Double Under Biden Administration Proposal – The Wall Street Journal
• Au (s)pair me – Politico
• State Dept. proposing major changes to U.S. au pair regulations – NBC12
• Families threaten to exit the au pair program if stricter rules are finalized – The Washington Post
• Pending changes to the au pair program – Good Morning America