Hiring an au pair involves several legal considerations, including visa compliance, labor laws, and working conditions. Taking the time to draft clear, comprehensive contracts and consult with legal professionals can help prevent issues.
Among other things, sponsors must ensure that au pairs have adequate paid leave time for rest between child care obligations and guaranteed sick time. They must also identify weekly schedules and ensure that au pairs do not work more than 31 or 40 hours per week (unless exigent circumstances exist). A great way to keep track of this is to speak with representatives from an expert au pair agency, such as those from expertaupair.com.
Visa Requirements
When applying for an au pair visa, it is essential that all required documents are accurate and complete. If not, the visa may be denied and future applications could be impacted. It is also important that au pairs maintain a valid passport throughout their time in the host country.
Au pairs are expected to be fluent in the language of their host country to communicate effectively with their family and connect with their local culture. In addition, most host countries require au pairs to have a minimum of secondary education, equivalent to high school graduation.
Host families must provide au pairs with food, accomodation and pocket money. In return, au pairs agree to work for at least 30 hours a week and receive one day off per week. Au pairs cannot work for more than their program’s maximum-hours limit, and hours may not be carried over from one week to the next (except in very limited exigent circumstances).
The Department of State and sponsor agencies carefully monitor au pairs to ensure they follow all of the requirements for the program. In cases where au pairs violate program rules, they can be subject to sanctions, including fines and deportation.
An au pair’s relationship with the host family must be based on mutual benefit. In order for this to be the case, au pairs must be willing to participate in cultural activities, learn about their host country’s culture and engage with the community in a meaningful way. They must also be able to communicate with the family in a respectful and appropriate manner. Host families must also understand that au pairs do not live with them as a maid or housekeeper and may only perform household tasks.
To be accepted into the au pair program, individuals must be between the ages of 18-and-26 and capable of participating in the program as evidenced by verification of their school enrollment, three non-family-related personal references and a background check. They must also pass a personality profile and meet certain health requirements. Once matched with a host family, The Cultural Exchange Project provides au pairs with the official documents they need to apply for a J-1 visa at a US Embassy or Consulate in their home country.
Sponsorship Requirements
The au pair program is regulated by the U.S Department of State and operated through designated agencies like Go Au Pair. The agency sets requirements for participants and helps them navigate the visa application process. The agency also provides educational and cultural opportunities for au pairs during their stay in the United States.
Federal regulations state that the program’s purpose is to enable au pairs to improve their English while soaking up star-spangled American culture. The agency also maintains that the program is not a childcare work program, but rather a cultural exchange program that allows participants to live with host families and use their earnings to travel around the country. Despite this, many participants still view the au pair program as an employment-based program that is subject to the same laws that apply to other types of employers.
As such, the sponsor has an obligation to make sure that au pairs and host families understand and agree on all aspects of the Host Family Agreement. The proposed regulation includes language that would require that the initial or amended Host Family Agreement identify duties and tasks acceptable to both parties and do not include activities listed as inappropriate under the new rules (proposed paragraph (j)(2)(ii)).
In addition, it is important that sponsors ensure that their local coordinators have the necessary training and skills to monitor au pairs effectively. The sponsor must make sure that the local coordinators do not have a personal or business connection with any of the host families for whom they have monitoring responsibilities, and it is not appropriate for a local coordinator to be responsible for more than 30 au pair placements (proposed paragraph (c)(2)(iii)).
Sponsors should also be prepared to respond in a timely manner to unforeseen circumstances that may result in an au pair needing to rematch. Sponsors should be able to match au pairs with a suitable host family in an expeditious and fair manner, keeping in mind that the au pair may have significant out-of-pocket expenses if they need to travel to another geographical area.
Working Conditions
The State Department wants to change some of the rules that govern au pairs, who are essentially domestic workers. In a 2018 report, au pair and worker advocates found that wage theft, coercion, sexual harassment, and retaliation are common in the program. It cited 25 potential cases of human trafficking. The new regulations the State Department proposes are an attempt to address these problems. They would increase au pair wages, reduce the maximum full-time work week from 45 to 40 hours, create paid sick and vacation days, formalize agreements between host families and au pairs and set out duties up front, protect au pairs by excluding tasks that are not appropriate (such as putting cameras in au pair rooms or bathrooms), raise standards for vetting both au pairs and hosts, and set reporting requirements for sponsor agencies.
Some of the proposed changes have already stirred controversy. A bipartisan group of senators is urging the State Department to reject a rule that would require au pairs to sign an agreement with their sponsor agency before joining the program, which could make it harder for au pairs to seek legal assistance when they are in trouble with their host family.
Advocates also have concerns about other parts of the proposed rules. They say the State Department is trying to preempt states and cities on wage and hour laws by requiring that au pairs be paid at least federal minimum wages, including overtime. This is not in line with the mission of the program, which is to provide participants with a unique American cultural and educational experience.
For 38 years, the State Department has insisted that au pair programs are not employment but a form of cultural exchange for young people who travel to the United States and improve their English while spending time with American children and soaking up some star-spangled culture. But recent court decisions like the $65.5 million settlement in Massachusetts against several au pair agencies for violating the visa program’s own regulations and federal labor laws have reaffirmed that au pairs are employees who deserve to be treated as such.
Taxes
Despite their status as cultural exchange visitors, au pairs are not exempt from taxes. In fact, their weekly stipend is considered income and they must report it to the IRS each year. Au pairs are also required to pay state taxes, depending on their home states.
Many au pairs will work with a tax professional to ensure they file correctly and do not overpay or underpay their taxes. Host families should consult with a tax specialist as well to make sure they are filing their Au Pair’s taxes accurately and following local laws.
A tax professional can help determine whether or not the costs of meals and lodging provided to the Au Pair qualify as a federal child care credit. Additionally, they can assist with determining the eligibility of other au pair-related expenses such as program fees.
As an added benefit, the cost of room and board may be eligible as a dependent care expense under employer’s Dependent Care Reimbursement programs. To find out more, it is recommended that you speak with your Employer Benefits professional or the program you use to sponsor your au pair’s visa.
Most au pairs will be a nonresident alien, meaning that they will not be subject to federal unemployment tax. However, if an au pair has previously been in the United States as a student, teacher, trainee, or researcher in F, J, M, or Q nonimmigrant status, they might be treated differently and could be subject to unemployment taxes.
Au pairs should not delay in getting a social security number once they have arrived in the US. The process is relatively quick and simple and can be done online or in person at a Social Security office. Once an au pair has their social security number, they can begin preparing for their tax return.
NDWA and Towards Justice are calling on the Department of State to step away from operating the au pair program altogether and let the Department of Labor decide what au pairs should be paid, how much host families can deduct for meals and housing, and other issues surrounding the Au Pair Program. To help au pairs prepare their tax returns, Sprintax has partnered with Apex Pro Au Pair to offer a 10% discount on the processing fee.