By Mark Overmann
A critical area of the Alliance’s advocacy efforts is engaging in the Department of State’s regulatory processes. When the Department proposes changes to the function and implementation of a program, the Alliance engages impacted members, partners, and communities to gain an understanding of the situation and put forward a strong, unified response. The federal regulatory process provides for public comment periods, and submitting comments during this time is critical to influencing the outcome.
Our most recent work came on behalf of the Au Pair Program. In October 2023, the Department of State released a notice of proposed rulemaking (NPRM) outlining major regulatory changes to the federal Au Pair Program. The Alliance has long supported modernizing the Au Pair Program regulations for the benefit of au pairs and host families. Upon reading the proposed changes and hearing from our Au Pair members, however, we became concerned that the proposed regulations would threaten to significantly harm an exchange program with a nearly 40-year track record of success.
Our first step was to work with our Au Pair Steering Committee and Working Group to gain a full understanding of the impact of the proposed changes. What we came to understand is that, 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 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; and
- Negatively impact the Department of State’s public diplomacy goals.
Second, we petitioned the Department to extend the comment period. The initial comment period was only 60 days, set to end on December 29, 2023. Given the limited amount of time this gave concerned parties to share their thoughts (not to mention two major holidays also cutting into the time), the Alliance requested that the comment period be extended by at least 30 days. This request directly led to a 30-day extension, with a new deadline of January 28, 2024.
Third, we immediately engaged au pair host families, encouraging them to submit their own comments on the proposed regulation. This grassroots letter campaign led to 5,233 comment letters being sent to the Department. We also led a campaign encouraging constituents to write their Senators and express support for the program, which led to 4,286 advocates reaching out to all 100 Senators.
Fourth, we wanted to have a fuller understanding of the impact these regulations would have on the program, namely on the desire and ability of host families to participate. We worked with the firm McDermott, Will & Emery to survey current and recent host families. Unfortunately, the data showed that, if these proposed regulations went into effect and raised the price of the program by 150-200%, more than 90% of host families would no longer choose to participate. This would of course have a devastating impact on the program.
And finally, we gathered detailed information from our Au Pair members regarding the more than 220 changes being proposed. This information formed the basis of the fifty-page comment letter we submitted to the Department. This letter addresses our general concerns (p. 1), identifies principal problematic aspects of the NPRM (p. 5), and outlines recommendations for a clear and modernized regulation (p. 10). It also provides commentary and recommendations on more than 50 individual proposed provisions.
Summary of Problematic Aspects
| Counter to the cultural exchange mission and mandate of the program |
| Does not include a clear statement of federal preemption |
| Undermines the experience of au pairs |
| Dramatic increase in costs for host families, and, consequently, a dramatic decrease in au pair and host family participation |
| Complex and burdensome administrative requirements would discourage participation and create new problems where there were none previously, and confusing and contradictory requirements would put host families at risk of liability |
| Underestimation of financial burden on sponsors |
Guiding Principles for a Successful Regulation
| The regulation must include an express, clarifying statement of federal preemption as to the program’s terms and conditions |
| The regulation must be narrowly tailored, aiming to modernize and clarify only key issues |
| The regulation must continue to ensure that cultural exchange is at the heart of the program |
| A commitment to maintaining affordability and accessibility must be central |
| The regulation should keep the administrative burden at a minimum |
| The current flexibility must be retained |
While this comment letter is only the start of our engagement in the regulatory process, it is a significant one that dictates our actions and messaging going forward as we continue to engage with our colleagues at ECA to come to an NPRM that supports all those invested in the program. We are grateful for all those who contributed to the comment letter process and look forward to the work to come to ensure the integrity of this important cultural exchange program is preserved.
Check out a full summary of our work on the Au Pair proposed regulation, as well as on Congressional activity and media mentions.