Three Key Considerations When Hiring a J-1 Au Pair During the Trump Au Pair Visa Ban

Anyone looking to hire an au pair right now is probably aware of the how difficult it is to get an au pair into the country. The most recent Presidential Proclamation continues to bar the State Department from issuing the type of au pair visa, the J-1, which an au pair needs to enter the U.S. to work. The State Department authorizes the au pair agencies that act as sponsors for the J-1 au pair programs.

After the Presidential Proclamation, the State Department issued some clarifications and exceptions (called National Interest Exemptions), to President Trump’s ban on several visa categories. An au pair, J-1 visa applicant may be approved to work in the U.S. most often if: (1) the coming to work for a host parent employed treating COVID-19 patients; (2) the family has a child with medical conditions (defined in the State Department Memo as “particular needs (e.g., medical, special education, or sign language); or (3) the care will prevent a U.S. citizen child from using public medical benefits. The State Department memorandum also lists four other narrow exceptions.

Here are the most important things to think about when interviewing and hiring an au pair right now:

Ensure that you obtain your au pair’s complete immigration history

We recently consulted with a family and their matched-au pair after the consular officer had already denied the J-1 visa. The host family has a child with life-threatening allergies and requires his au pair to maintain very strict compliance with the treating doctor’s protocol. So, they likely would qualify for one of the listed National Interest Exemptions allowing a trained au pair to receive a J-1 visa.

Why did the consular officer deny the au pair’s J-1 visa application? It had nothing to do with the host family and everything to do with the au pair’s previously-undisclosed immigration history. Apparently, the au pair had earlier worked in the U.S. without authorization. She had been engaged to a U.S. citizen. She was also refused entry into the U.S. on a recent visit.

The host family had no idea about any of these potential immigration problems and lost precious time in the au pair hiring process.  Au pair agencies do request general information about an au pair candidate’s immigration status. However, we are not aware of any agency that has an immigration attorney on staff to review the immigration consequences in detail or ask the necessary follow up questions.

After this au pair’s visa was denied, the family wanted to know what options they had.  Unfortunately, it is not possible to appeal a visa denial and they now have to start the selection and matching process again. Because of this au pair’s past immigration violations, we did not recommend that she try to reapply.

We recommend having an immigration attorney ask the hard questions up front, before sending an au pair for a visa interview. In many cases, the attorney can:

  • Help the au pair compile and submit additional documentation to explain a past immigration problem.
  • Provide coaching in advance of the interview on how to respond truthfully and honestly to questions.
  • Spot potential problems up front and address these issues proactively in the application.
  • Advise the host family on the likelihood of success that the au pair will receive a visa.
  • Advise when it may be better to choose a different candidate.

Each of these measures can save families precious time when they are trying to ensure that they are hiring the most qualified and caring au pair for their child.

Talk to an immigration attorney to see if you qualify for a National Interest Exemption due to your child’s medical condition

Many American children have diagnosed medical conditions, including allergies, learning disabilities, physical impairments, chronic conditions, or cancer. However, with proper medical management and trained home care, these kids can have a safe and happy childhood while remaining at home. Au pairs with extra training and experience related to a child’s illness are a lifeline for these children and their parents, especially now. These au pairs may qualify for a National Interest Exemption to Trump’s ban, based on a child’s medical condition.

We don’t have much feedback from the State Department, yet, regarding what exactly qualifies as a “particular [medical] need,” or the types of documents needed to prove a National Interest Exemption based on a diagnosed medical condition. However, an immigration attorney understands how to prepare an argument to present to a U.S. consular officer in light of the nuances of the Presidential Proclamations, amendments, and State Department guidance and memos.

Do you have any options if the consulate denies your au pair’s visa or National Interest Exemption?

As noted, it is not possible to appeal when the consular officer denies a J-1 visa. But, in some situations you may be able to schedule a second appointment, to try again, and provide additional supporting documentation that overcomes the officer’s original objections. You may also qualify under a different exemption.

We may only recommend scheduling a second appointment in rare circumstances after we evaluate the reason the officer denied the visa, the risk of a second denial, and the longer-term effect on the au pair’s U.S. immigration record. Everyone involved should keep in mind that, even after the au pair visa ban is lifted later, a visa application denial will remain permanently on the au pair’s record. But, how a denial of a National Interest Exemption will affect any U.S. visa application in the future, remains unknown.

The current Presidential Proclamation preventing the State Department from issuing J-1 visas to au pairs will expire at the end of the year. We hope that the President will not extend this ban and, if Joe Biden wins the election, that he will permanently lift it. However, given the severe consequences that can result from not understanding the immigration laws affecting au pair visas, it is more important than ever to involve an immigration attorney before the au pair’s appointment at the consulate and ideally, at the time you choose to hire a particular au pair.

Bottom Line

The most important thing you can do to give your au pair the best chance of receiving a J-1 visa, is to have an immigration attorney review the au pair’s immigration record. Once you are certain that the au pair does not have any negative immigration history, explore whether you can qualify for any of the National Interest Exemptions detailed in the State Department’s guidance.

The Felhaber Larson Immigration group, led by Sonseere Goldenberg, has experience advising host families on J-1 au pair visas. They can evaluate your au pair’s immigration history and prepare a National Interest Exemption application, if you qualify. Click here for Sonseere’s contact information.