My Au Pair Is Selling Products on Facebook: Should I care?

by cv harquail on September 29, 2017

Au Pairs who want to make extra money, beyond their stipend and in violation of the State Department rules, usually stick to a few basic strategies — working a few extra hours for their family, walking a dog or two, or taking the rare emergency babysitting job down the street.

None of these jobs are legal for au Au Pair to hold, but when done a handful of times over the course of the year, they don’t seem to cause problems.

4132611614_e25b454c4f_mThen, of course, there are the enterprising Au Pairs — the ones who offer to mow the lawn of a neighbor every Saturday, who take a second job, who sell baked goods at the farmer’s market using the Host Family’s pantry as a supply cabinet, and then the recent case of the Au Pair who signed herself up to be an Uber driver, using her Host Parent’s car.

These sorts of extra money-earning opportunities not only violate the State Department rules, they also get in the way of the Au Pair’s childcare work and his or her relationship with the Host Family.

But Multi-Level Marketing on Facebook is a new one for us.

A host mom writes:

I’ve discovered that our current au pair has started a home-based business, selling weight-loss products for a multilevel marketing company. She’s advertising this publicly on Facebook, which is how I learned of it.

I don’t think she realizes that this is a violation of her visa. I am concerned for two reasons — first, she could be found out by her Agency or Local Counselor, which could cause problems. And, I worry that she’ll actually be losing money or find herself needing to recruit more salespeople (and even get other au pairs involved) so that she can make any money. Of course, our Au Pair doesn’t see anything wrong with this.

Should I care? Should I tell our LCC or Agency? Should I just look the other way?

I know that lots of moms seem to be selling MLM-based products, so why wouldn’t the au pairs look at that and think they could do it, too?

Have other Host Parents or Au Pairs run into this situation? I’d love some advice here.

Pyramid-wary Host Mom

 

{ 10 comments… read them below or add one }

Elizabeth September 29, 2017 at 9:58 pm

What do you want? Do you want her to stop or just not to get into trouble?
I think as her host mom you owe it to her to tell her that she is violating the law and you can’t condone the conduct. If you want it to stop – it’s your home and she’s doing this work in it – tell her that you have an obligation to the agency and she is not allowed to do this work while you are hosting her. If you don’t care if she earns the extra income then warn her and ask her to speak with her LCC then leave it alone, I guess. I wouldn’t want it (and therefore forbid it) because if she gets in trouble she endangers her role in the program which would be a great disruption to my family.

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TexasHM September 30, 2017 at 2:37 pm

Like Elizabeth says it depends on the outcome you are looking for. If you want it stopped you are more than within your rights to draw a line in the sand and say it cannot happen. They sign a contract where they agree not to take ANY form of other employment or compensation (not even babysitting on the side for a couple hours). The rules are crystal clear. No comp whatsoever except their stipend. If they do accept compensation of any kind for any reason from anyone else they are in violation of their agency contract and their visa rules. Their visa could be terminated and they could be asked to leave. Period. If it gets reported and they see it on FB it won’t matter how great an AP she is and that you want to keep her, this is such a blatant violation of her visa (no gray area to hide in) that they would likely revoke her visa without conversation/appeal. I know of an AP that posted for a friend on FB and almost got her visa revoked over it. Your AP wouldn’t be able to blame it on someone else.

It sounds like you are concerned (rightfully so, I would be too). If it were me (assuming we didn’t rematch over it) I would tell her to remove everything online immediately, show me everything is cancelled and returned and swear never to do it again as long as she was in our home/our AP. Assuming she did all of that immediately and with a good attitude then we would try to move on like it didn’t happen. If I got pushback or attitude we would likely discuss rematch. Someone that is willing to risk losing their visa by doing something illegal whether it is drinking underage, drinking and driving, illegally selling MLM products on a J1 visa, whatever – we would figure they have poor judgment and therefore should probably find a better match elsewhere. If I can’t trust you to make good decisions and not violate your visa or agency contract then you can’t live in my house and watch my kids. If you do something dumb out of ignorance and I notify and you quickly apologize and fix with a great attitude and you are doing a great job then OK, but please don’t have a lot of those mistakes.

As far as moms selling that stuff – apples and zebras. Moms are US citizens. They can also work more than 45 hours per week, have 15 jobs, name the kids Apple and Moonunit and make whatever poor decisions they like without jeopardizing someone else’s childcare. ;) It’s not that you don’t want her to make money, you just cannot stand by and watch her gamble with her visa. (BTW – if her visa gets revoked for something like that it also impacts her ability to return to the US in the future. I have seen situations where APs and/or their family could not come to the US after an AP overstayed a visa or otherwise had a negative visa termination.)

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Should be working September 30, 2017 at 7:42 pm

If you are looking to go into rematch, you have your wish: an outright violation of her visa and the program rules, and poor judgment anyway. Leverage it and have her removed.

If you are happy with this AP and believe she is happy with you, I would recommend telling her she needs to cease immediately (which means she will lose money). She is indeed at risk of being found out and sent home, plus she puts the entire program at risk because this sort of thing can be used against the program as it fights off attacks.

If she got sent home that would be disruptive for you and your kids, time consuming for you to do a new search and orientation of new AP, and also has potential financial costs (e.g. we west-coasters pay an extra fee for air travel to our homes).

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2 kids and a cat October 2, 2017 at 1:10 pm

While CCAP is the official visa sponsor, they front none of the dollars or time investment of bringing an AP over. If she violates the terms of her visa and risks being sent home, it’s on us, the HF, to assume the financial fallout, inconvenience, and family disruption. So from MLM to Saturday-night babysitting I am opposed to my AP earning extra money beyond her stipend. I lived on a stipend for years as a doctoral student and still had to pay for my own room, board and transportation out of it. I certainly understand and AP wanting more money for shopping or travel, but that’s a fairly common plight of any 20-something so I am not exactly sympathetic to her cause.
You could simply tell her that she cannot use any of your home or family resources (from internet, to phone, to driving product to the post office), but as mentioned above you could try to work our reimbursement from the company. When I call on behalf of my APs, I’ve found the narrative of young international girl to get a lot of sympathy that many US adults themselves would not.

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HRHM October 2, 2017 at 4:16 pm

I may be wrong, but I don’t think this is actually a violation of her visa regulations. I can’t speak to what the actual agency contract states, but the SD and USCIS clearly disallow “employment” while in the US on a non-working visa. However, what you’re describing is not considered employment. She is acting independently and is selling goods, which is clearly not employment in the traditional sense. If she already had a ML business on FB prior to matching, and was selling to people in her home country, this wouldn’t be looked at askance. Until someone takes it to court to get the law clarified, she is in a gray zone and unless you complain to the agency, is likely fine continuing.

Now, how it affects her job performance is another issue altogether.

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Anonymous in CA October 2, 2017 at 9:03 pm

HRHM,you raise a fascinating point about distinguishing between “employee” and “Independent contractor” – I can get my heard around that conceptually and legally. What I can’t get my head around though is if an AP works as a babysitter or house cleaner, that’s a household employee and clearly a violation. But if an AP works as a tutor (independent contractor), that might not be a violation…wouldn’t everyone on a J-1 visa simply find work as a contractor? And if the hiring person is an individual, not an entity or a business, then there would also be no 1099 issued. It just seems too cute to me as a work around, but I never really thought about it that way and your analysis makes sense.

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PacificNorthwestHostMom October 5, 2017 at 11:33 am

It’s very interesting to look at it from the perspective of what is/isn’t “employment”. This got me doing the additional thinking and taking a different approach. First, in looking at the J1 Visa regulations, it states,

“A J-1 holder may only perform the activity listed on his/her Form DS-2019, or as provided for in the regulations for the specific category for which entry was obtained and with the approval of the Sponsor’s Responsible or Alternate Responsible Officer.”

To review further, I reviewed the “Non-Reinstateable Infractions” section of the State Departments AuPair guidelines and Non-Reinstatable Infractions, and it states, “The following infractions preclude reinstatement. Applications for reinstatement submitted to the Department of State showing any of these infractions will be denied: 1) willful and knowing failure to comply with program insurance requirements; 2) unauthorized employment;….”

Okay, so then what exactly is “unauthorized employment” ? Well, 22 CFR 62.16, the section on Employment further articulates, “Unauthorized employment means any employment not properly authorized by you or by the Attorney General, i.e., the Immigration and Naturalization Service, prior to commencement of employment.”

So it’s a “no-no” all the way around. Although I would LOVE to argue that she’s not engaged in employment, Black’s Law makes it clear that employment can include an “occupation, trade post or business….” and “…. activity in which a person engages or is employed.”

I don’t think you can dance your way around the definition of “employment”, although it was a captivating thought. Further, we have to look at what the intent is of the State Department, which is clearly that they are not making money elsewhere or “working” in any such capacity whether for themselves or another while fulfilling their AuPair duties (or at least that’s what I’ve gleaned from reading all of the sections related to this topic).

While part of me wants to applaud her for her efforts to become an entrepreneur, and she may have very good intentions I could not agree with her continuing in that role. I’m not going to comment regarding my feelings about MLMs because it’s irrelevant to the issue and could lead to an entirely different debate, but the bottom line is that her J1 Visa could be revoked, she certainly couldn’t extend if the State Department found out, and it puts the Host Family in jeopardy of losing their childcare and being forced into rematch.

I would sit her down (if you haven’t already) and share with her WHY you’re concerned. I would also mention that it could jeopardize her year. She’s in violation of the program and likely would have to be sent home on her dime, if the agency chose to push it that far. Start with heart, let her know why it’s a concern for her well-being and ability to complete her year, and what she came here for and how it can leave you without childcare (leave your feelings about MLMs if you are “pyramid-wary” because that should be a different conversation). Or, if it’s not a good fit to begin with, rematch could be an option.

On a lighter note, be thankful your AuPair hasn’t chosen to be an exotic dancer, “escort” or Uber Driver, all of which we’ve heard of in our area. Best of luck.

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TexasHM October 5, 2017 at 2:31 pm

This. I was too lazy to go dig out all the fine print. Thanks PacNWHM! This is much higher profile too than the one time babysitting gig for a friend on a Saturday night. There is tons of paper trail, social media, orders, signatures, MLM contract, shipments, etc. No plausible deniability or gray area on this one. Please let us know what you do and how this works out!

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Anonymous in CA October 6, 2017 at 11:30 am

Thank You PacificNorthwest HostMom…I too hadn’t quite gotten to digging out the fine print! And completely agree with your assessment.

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NJ Mom October 3, 2017 at 6:36 pm

Personally, I would take a two-fold approach

First is to apply the regular second job rules like AP may not use any host family resources towards her second job, AP must continue doing a great job as an AP, no working on the side gig while on duty, not using the family’s network to find clients, etc. Or if your family rule is that she may not work any side gigs than stick with that.

Second is insisting that AP understands MLM as opposed to blindly believing the sales pitch of how she can work whenever she wants and make boatloads of money. Part of the pitch is that MLM is very low risk with potential for high returns.
There are a few aspects that she needs to carefully consider. 1) She will be spending money which she may or may not make back. 2) Not only will she be selling to her friends, she will be expected to bring in more “consultants” likely which will include other APs (who would also need to spend their $ etc). 3) Once her friends are her clients/team, the nature of their relationships will change. Is she prepared for dis-satisfied customers, laying off the sales pitch to those who are not interested, etc.

If AP decides to continue, I would let the LCC know, as the very nature of MLM means that AP will try to bring in more APs. Normally, for something like side babysitting, I wouldn’t say anything to LCC. However if AP was starting a side babysitting agency recruiting other APs to babysit, I would definitely say something. If you don’t want to single out your AP, you can tell the LCC that you saw on facebook that someone in the cluster is involved in MLM and you’re concerned that it may impact the whole cluster.

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