While families all over America have foreign- b orn nannies, the options for hiring them legally are very limited. A high portion of the families hiring such individuals is likely not complying with the nation's immigration laws.

There are some availa b le strategies, however. They each have limitations and may require patience and money. But if you want to follow the law, you will need to consider these possi b ilities.

J-1 Visas for Au Pairs

[Excerpted from The J Visa Guide b ook b y Greg Siskin d , William Stock and Steve Yale-Loehr pu b lished b y Lexis Nexis (http:// b ookstore.lexis.com/ b ookstore/catalog?action=product&prod_id=12991&cat_id=T&pcat_id=31&pu b _id=)

The au pair prog ram has b een controversial since its inception in 1985. When the first two pilot prog ram s ended, the U.S. Info rm ation Agency (USIA), which administered the au pair prog ram at the time, wanted to te rm ina te their designation b ecause it claimed that it lacked statutory authority to regulate the prog ram s. In 1988 and 1990, Congress passed legislation authorizing and o b liging the USIA to administer and regulate the au pair prog ram . The prog ram was supposed to end in 1995, b ut it was extended until 1997. In 1997 Congress extended the au pair prog ram pe rm anently.

Au pair prog ram s allow foreign nationals to enter the United States , live with a U.S. family and experience American family life while providing limited child care and attending a U.S. post-secondary educational institution. Au pair participants may elect to participate in the “EduCare” prog ram , a su b set of the au pair prog ram , which allows the au pair to reduce the num b er of hours per week spent on child care and to pursue academic studies more vigorously. Orig ina lly, the prog ram was only availa b le to individuals from Western Europe . In 1995, however, Congress expanded the prog ram to admit students from around the world except those countries with which the United States has no diplomatic relations. All au pairs must b e proficient in English, high school graduates and b etween the ages of 18 and 26.

Applicants to an au pair prog ram must su b mit to an in-person interview in English, provide three non-family references, successfully pass a crim ina l b ackground check, and satisfactorily complete a physical exam ina tion. Further, an applicant must have a personality profile done that is b ased on a psychometric test that measures the differences b etween the characteristics among applicant s and those characteristics considered most important to successfully participate in the au pair prog ram . The sponsor is responsi b le for providing a host family with the prospective au pair's complete application, including references, so the family may dete rm ine whether the applicant would b e compati b le with them.

Host families must b e fluent in English and must pass a b ackground check. In addition, they must either b e U.S. citizens or legal pe rm anent residents. All adult family mem b ers living in the home must su b mit to an interview conducted b y the prog ram sponsor. In addition, the family must have the f ina ncial resources to pay the au pair a weekly stipend of at lea st the minimum wage and up to $500 for academic expenses. Au pairs who participate in the EduCare prog ram are paid 75% of the weekly rate paid t o n on-EduCare participants, and up to $1000 for the au pair’s academic work

Au pairs may not b e placed in any one of the following five situations:

     . The family has not specifically agreed that a parent or other responsi b le adult will remain in the home for the first three days following the au pair's arrival to provide a transition period and to ensure that the au pair is comforta b le in his or her new home, community, responsi b ilities and surroundings;

     . The family has a child less than three months old, unless a parent or other responsi b le adult is present in the home;

     . The family has children under two years old, unless the au pair has at lea st 200 hours of documented infant childcare experience;

     . The family and the au pair have not executed a written agreement outlining the au pair's o b ligation to provide no more than 45 hours of child care services per week (EduCare participants may provide no more than 10 hours per day or 30 hours of child care services each week); or

     . The family cannot provide the au pair with a suita b le private b edroom.

Just days after the USIA merged into the State Department, the State Department issued new rules on the selection and orientation of b oth host family and au pair participants. The State Department indicated that the purpose of the rule is to provide greater consistency in the au pair prog ram (and presuma b ly in response to the highly pu b licized recent au pair murder trial in New England involving a British J-1 visa holder). The new rules b re ak down into four gene ral categories: placement of the au pair, requirements for selection as a host family, orientation to the prog ram , and reporting requirements.

The following are new requirements related to the placement of au pairs:

     . A parent or other responsi b le adult must remain in the home for the first three days the au pair is there.

     . An au pair is not to b e placed with a family with a child under three unless a parent or responsi b le adult is in the home.

     . An au pair is not to b e placed in a family with a child under two unless the au pair has at lea st 200 hours of documented infant care experience.

     . An au pair is not to b e placed in a family with a special needs child unless the au pair has documented prior experience and the family has reviewed it.

     . A written agreement b etween the au pair and the host family is required, and must spell out that the au pair will provide no more than 45 hours of child care per week. EduCare participants may provide no more than 10 hours per day or 30 hours of child care services each week.

     . The au pair must b e provided with a private b edroom.

     . There must b e a telephone interview b etween the au pair and the host family b efore the au pair lea ves home to come to the United States .

The new requirements for a host family are as follows:

     . The host parents must b e U.S. citizens or pe rm anent residents.

     . The host parents must b e fluent in spoken English.

     . All adults living in the host family must b e interviewed b y the prog ram sponsor.

     . All adults living in the host family must pass a b ackground investigation, including employment and personal character references.

     . The host family must have f ina ncial resources commensurate with its o b ligations as host.

     . The host family must b e provided with a copy of the au pair's application, including all references.

The au pair must b e provided with copies of all rules and regulations that govern his or her participation in the au pair prog ram , as well as a detailed profile of the family and community where he or she will b e placed and any schools in the area, including costs of attendance. The host family must attend a host family conference, and must b e provided with copies of regulations governing the au pair prog ram .

The new regulation also requires the prog ram sponsor to file an annual report with the State Department. The report must include the following info rm ation:

     . The results of surveys of host families and au pairs regarding their satisfaction with the prog ram ;

     . Lists of complaints a b out the prog ram , including actions t ak en in response;

     . Copies of all promotional literature; and

     . A report b y a certified pu b lic accountant affi rm ing that the prog ram is complying with the procedures and reporting requirements of these regulations.

In addition to the new requirements, sponsors have a num b er of other responsi b ilities in administering the au pair prog ram :

     . Au pairs should provide no more than 45 hours per week or 10 hours per day of child care. EduCare participants may provide no more than 10 hours per day or 30 hours of child care services each week. Au pairs must b e given one and one-half days off per week, one full weekend off per month and two weeks of paid vacation per year;

     . Au pairs must enroll in an accredited post-secondary educational institution for at lea st six semester credit hours or its equivalent, or 12 semester hours for EduCare participants;

     . Au pairs may not participate in the prog ram for more than one year; and

     . Each host family must attend at lea st one ``family day conference'' to b e given b y the sponsor during the placement year.

In addition, sponsors must info rm au pairs of their child care duties and what is considered unaccepta b le b ehavior. The sponsor must also provide the au pair with a summary of his or her travel arrangements and a detailed description of the host family, the community in which the au pair will live and the educational institutions in that area including the tuition costs. Prog ram sponsors must ensure that the au pair's compensation is at lea st the minimum wage set forth b y the Department of La b or, with appropriate deductions for room and b oard. Participants in the EduCare prog ram are to b e paid 75% of the weekly rate paid t o n on-EduCare participants.

Prog ram sponsors are also responsi b le for providing child care training for au pairs. Au pair prog ram participants must receive at lea st eight hours of child safety instruction, of which four must b e specifically infant-related. In addition, they must receive at lea st 24 hours of child development instruction, of which no fewer than four hours must b e instruction in the care of children under two years old. This child development instruction should include topics such as stress management and Sh ak en Ba b y Syndrome. Such training may b e provided in the au pair's home country.

The State Department has approved the following au pair prog ram sponsors:

EDUCATIONAL FOUNDATION FOR

FOREIGN STUDY (EF Au Pair)

EF Center Boston

One Memorial Drive

Cam b ridge , MA 02142

Responsi b le Officer (R.O.): Mr. Steven Meyer

Tel.: (617) 619-1000

Tel.: (800) 333-6056

Fax: (617) 619-1100

Internet: http://www.efaupair.org/APNetscape/index.html

AM ERICAN INSTITUTE FOR FOREIGN

STUDY (Au Pair in America )

River Plaza

Nine West Broad Street

Stamford , Connecticut 06902

R.O.: Ms. Ruth Frizell Ferry

Tel.: (203) 399-5000

Tel.: (800) 727-2437

Fax: (203) 399-5592

Internet: http://www.aifs.org/

EURAUPAIR INTERCULTURAL

CHILD CARE PROGR AM S

250 North Coast Highway

Laguna Beach , CA 92651

R.O.: Mr. William Gustafson

Tel.: (914) 494-5500

Tel.: (800) 333-3804

Fax: (914) 497-6235

Internet: http://www.euraupair.com/

AYUSA INTERNATIONAL

(Au Pair Care)

2226 Bush Street

San Francisco , California 94115

R.O.: Mr. John Wilhelm

Tel.: (415) 434-8788

Tel.: (800) 428-7247

Fax: (415) 616-0585

Internet: http://www.aupaircare.com/

INTEREXCHANGE AU PAIR

161 Sixth Avenue - 13th Floor

New York , NY 10013

R.O.: Ms. Uta Christianson

Tel.: (212) 924-0446

Tel.: (800) 287-2477

Fax: (212) 924-0575

Internet: http://www.interexchange.org/

EXPLORING CULTURAL AND

LEARNING/AU PAIR REGISTRY

(Au Pair Prog ram USA )

6955 Union Park Center                                                            

Suite 100

Salt L ak e City , UT 84047

R.O.: Mr. D. Gary Christian

Tel.: (801) 255-7722

Tel.: (800) 574-8889

Fax: (801) 255-7782

Internet: http://www.goaupair.com/

The DOS list of approved au pair prog ram s is also on the Internet at http://exchanges.state.gov/education/jexchanges/private/AuPair_Sponsors.pdf

Other visa possibilities

While the J-1 visa is by far the most common visa category for au pairs, other child care workers occasionally come in using other visa categories.

If a nanny would like to come to the US to work with a family coming to the US on a work visa, the nanny may be able to work on a B-1 visa. Under Section 41.31 of the Foreign Affairs manual, personal or domestic servants who accompany or follow to join employers entering the US in B, E, F, H, I, J, L or M nonimmigrants may enter the US if

1. The employee has a residence abroad which he or she has no intention of abandoning (notwithstanding the fact that the employer may be in a non immigrant status which does not require such a showing);

2. The employee can demonstrate at least one year’s experience as a personal or domestic servant, and

3. The employee has been employed abroad by the employer as a personal or domestic servant, for at least one year prior to the date of the employer’s admission to the United States; or

4. If the employee-employer relationship existed immediately prior to the time of visa application, the employer can demonstrate that he or she has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the domestic servant’s visa application for a nonimmigrant B-1 visa.

5. The employer and the employee have signed an employment contract which contains statements that the employer guarantees the employee the minimum or prevailing wages, whichever is greater, and free room and board and will be the only provider of employment to the servant41.31 N6.3-4 Servants of Lawful Permanent Residents (LPRs)

H-2B visas are sometimes used by child monitors. H-2B nonimmigrant work visa provides a method for US employers and agents to obtain the services of foreign nationals to fill temporary needs for additional workers. The annual cap on this type of visa is 66,000. Until recently, the limits and requirements of the category caused usage of the visa to be marginal. For example, in 1995, only 2,398 H-2B visas were issued. However, the visa has become very popular in recent years, particularly in the hospitality industry. The limit has been much closer to being reached recently.

H-2B visas require employers to go through a process of advertising for a position to show no Americans are available to fill the position and are immediately available.

The length of the stay on an H-2B visa is limited by the duration of the employer’s temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years. However, extension applications are closely scrutinized. Either skilled or unskilled workers may be employed on an H-2B visa. Several unpublished decisions provide what little guidance is available on this subject. What does seem to be key is proving the need for the worker is temporary. If an employer does not explain why the need for the child monitor will end or hinting that the position is permanent will hurt the petition. An employer, for example, might want to specify that the need for the child monitor will end when a child registers in school.

Finally, child care workers are potentially eligible for permanent residency visas by going through a labor certification process. Like the H-2B visa, this is a process where an employer shows that after attempting to recruit for a position, no American workers with the minimum qualifications for the job are immediately available. Unlike an H-2B visa, an employer must show the position is permanent in nature and not temporary. The process can take several years and it is very difficult to maintain a legal nonimmigrant status in the US while waiting for the green card to come through.