National Interest Exemptions for J-1 Au Pairs—Is Anyone Getting One?

We have heard that some U.S. consulates have granted National Interest Exemptions for J-1 au pairs.

Most Americans know someone who is significantly affected by the Presidential travel ban on au pairs (and just about everyone else for that matter). Not only does the J-1 visa ban affect ordinary working families, it significantly affects military families with children. The only option for getting an au pair into the country right now is to obtain a National Interest Exemption (NIE). And, incredibly, the State Department guidance does not list any exemption for active duty or reserve service members. The exemptions in general, are limited.

Why can’t you hire an American nanny?

Believe us when we say that it would be a lot easier to hire an American nanny than to hire an au pair from abroad these days. But anyone who has tried to find childcare in the last several years knows that quality daycare services and nursery schools are increasingly unaffordable for the majority of people and can have years’ long waiting lists. Many rural areas have faced severe childcare shortages for a decade or more.

And, currently because of the President’s au pair visa ban, most U.S. based nanny services and childcare centers are unable to locate enough U.S. employees to satisfy the demand. They also have waiting lists that go into mid-2021. The situation is troubling, to say the least. If your only option is an au pair, we previously offered some thoughts on navigating the process in an earlier post entitled Three Key Considerations When Hiring a J-1 Au Pair During the Trump Au Pair Visa Ban.

An au pair offers an affordable option, despite the exotic name that really describes amazing young people who come to the U.S. under approved, State Department programs to care for children in America. An au pair lives in the host family’s home, receives paid tuition for a college-level course each year, and a stipend for other expenses. They also usually have off-time access to a car and take children to daytime activities or to-or-from school. Still, they are a much more affordable option for many families when compared to the cost of daycare or nanny services.

When will the J-1 visa ban end?

While the Trump visa ban is set to expire at the end of 2020—that date is just a technicality. The reality is that the administration can easily renew it an infinite amount of times. We recently heard an au pair company emphasize that the ban will end on December 31, 2020. We cringed just a bit when hearing this since there is no way to guarantee when the visa ban will end.

We felt that the statement gave families a bit of false hope, or too much hope for an end to the au pair visa ban. We are not optimistic at all that Trump will remove the ban or issue additional exemptions. Already, it’s forcing families with two working parents to choose between staying home with children and abandoning their careers. And, military families may have to choose to defer or turn-down assignments in order to be closer to home.

Is the State Department granting any NIEs at all?

Yes. While we’ve heard mostly anecdotal evidence (with the results varying, depending upon at which consulate the au pair is applying), the State Department is granting some National Interest Exemptions for au pair families. However, it appears that every U.S. consulate is making decisions differently. Since the consular officers have little guidance from the Trump administration, they too, must interpret the Presidential Proclamation and subsequent State Department exemptions as best they can. The process for applying also can vary by consulate and country.

Successful National Interest Exemptions demonstrate the host family’s ability to directly document that they meet one or more of the exemptions. Applications that try to stretch the definition of an exemption are more at risk of denial. Consular officers have denied applications filed by medical and dental professionals not involved with the provision of medical care for COVID-19 patients under the third bullet below.

For example, two married medical professionals, not directly treating COVID-19 patients, argued that all medical professionals indirectly are at risk of contracting, or being called to care for COVID-19 patients. An au pair agency noted that the consular officer denied the NIE application for the host family stating that the connection is not direct enough.

Consular officers are also narrowly reviewing applications filed under the first bullet: au pairs providing care for children with “particular needs.” While the State Department is approving NIEs for au pairs caring for children with very severe medical needs, when the au pair has proven and documented special training to care for these children, we don’t know where the lines are for either the severity of the condition or the degree of training the au pair has.

For example, au pairs caring for children with life-threatening allergies who require constant supervision, isolation from a daycare setting, and a strictly supervised diet, may or may not receive an NIE at the consulate. The officer may not consider this child as having “particular [medical] needs” or may not consider the au pair’s training in administering an Epi pen, preparing allergen-free meals, or responding to a life-threatening anaphylactic reaction as sufficient to meet the standard for “skills to care for such child.”

The first three listed U.S. Department of State J-1 exemptions are:

–  Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language).  Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.

– Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.

– Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.

Most host-families apply for NIEs under the first and the third bullets. It appears that currently, the consular officers are very strictly and narrowly interpreting whether a host family meets the requirements.

Bottom Line

Most host-families apply for NIEs under the first and the third bullets. It appears that currently, the consular officers are very strictly and narrowly interpreting whether a host family meets the requirements.

Hopefully, as the voices of thousands of families affected by the au pair visa ban grow louder in Washington, the Trump administration will broaden the exemptions or eliminate the ban altogether.

Sonseere H. Goldenberg practices in the areas of U.S. immigration and nationality law. She has over 20 years of immigration experience successfully helping families and business achieve their immigration goals.