Report says cultural exchange program being abused as a source of labor; Sen. Mark Udall calls for better oversight and accountability
By Bob Berwyn
SUMMIT COUNTY — A popular cultural and educational exchange visa program is under scrutiny because of possible abuse by U.S. companies.
Many U.S companies, including Colorado ski resorts, have hired foreign students under the program for seasonal jobs at a time when unemployment among youth is at record highs. The program displaces U.S. workers by giving employers a loophole to hire foreign workers at the expense of Americans, according to the nonpartisan Economic Policy Institute.
The recent briefing paper from the institute claims that the J-1 Exchange Visitor Program is now the largest U.S. guest-worker program in terms of annual admissions. According to the report, 300,000 of the 350,000 people admitted under the visa program worked at full-time jobs. Visa-holders from China, Russia, Brazil and other countries have found employment as au-pairs, ride operators at amusement parks, hotel maids, laborers on dairy farms, and other semi- or unskilled workers as well as in professional occupations such as teachers and physicians, the report concludes.
In a classic case of the fox guarding the henhouse, the State Department has outsourced compliance monitoring to recruitment companies that have a financial interest in maximizing their return from the program, leading to an obvious conflict of interest.
Additionally, most participants incur significant debt to participate in the program, and since they can’t change employers, they essentially are indentured to their employers when they arrive. This has led to exploitation of foreign workers under the program. The investigation found some workers living in over-crowded conditions, other begging, and in the most extreme cases, forced to work in the sex trade.
Coming on the heels of an Inspector General report on the program issued in 2000 and a GAO report in 2005 that identified similar concerns, the latest information prompted Colorado Sen. Mark Udall to call on the U.S. State Department to take a closer look at the program. Udall said he wants to know what the agency is doing to prevent employers from misusing the program to the detriment of U.S. workers.
In a letter to Secretary of State Hilary Clinton, Udall said, that he is concerned “that the program lacks sufficient oversight of program sponsors and enforcement of the protections against abuse to maintain the integrity of the cultural and educational components of the program while ensuring that American workers are not adversely affected.”
Udall asked Clinton to show how the State Department has exercised oversight and enforcement “to protect against possible misuse of the visa program as it pertains to the protection of U.S. workers.” Specifically, he asked for a list of the tools that the department’s Bureau of Educational and Cultural Affairs utilizes to certify that the program does not adversely affect a U.S. worker, and a report assessing whether the tools are adequate.
Colorado leads the nation in the number of foreign students employed through the program. Many private companies operating the concessions in national parks have used the program to hire seasonal employees, and as recently as 2008, Vail Resorts recruited as many as 300 employees under the J1 visa program — although foreign workers under J-1 and H-2B visas make up less than 10 percent of the company’s labor force at peak employment, estimated at about 14,000 workers across ski areas and hotels.
The J-1 visa program was created in 1960s to promote educational and cultural exchange through academic, government, medical, and student travel and work programs in the United States. Employers who take part must pay qualified foreign nationals the same wages and benefits they pay U.S. workers.
But according to the EPI report, the program “has deviated far from its original intent,” and the lacks sufficient oversight to make sure it’s not abused. The report points out that the program is advertised as a labor program on recruitment websites. The four major flaws in the program are:
- The lack of protection for U.S. workers
- The State Department’s overbroad authority to create new guest-worker programs;
- The significant and inappropriate financial incentives for J visa sponsors and their partners;
- And the program’s flawed system of management, data collection, oversight, compliance, and enforcement.
Specifically, the report concludes that the program displaces U.S. workers by providing significant direct and indirect financial incentives for individuals, companies and organizations that recruit exchange visitors as workers and sponsor them exchange visitors, then hire them as lower-cost labor alternatives to U.S. workers or foreign guest-workers in other nonimmigrant visa classifications that provide greater protections for U.S. workers.
Some of problems associated with the program came to light in 2008-2009 at the heart of the recession, when scores of Brazilians who had been promised jobs under the program arrived in Colorado only to find a moribund economy, and no work. The issues were discussed in this Summit Daily News story, co-written by Bob Berwyn and Daniela Martins, one of the Brazilians who came to Colorado with the promise of a job.
The full text of Sen. Udall’s letter:
The Honorable Hillary Clinton
United States Department of Stat
2201 C Street, NW
Washington, DC 20520
Dear Secretary Clinton:
Approximately 50 years ago, the U.S. Congress authorized the U.S. Department of State (Department) to create a program that promoted cultural and educational exchange as a tool to enhance our diplomatic ties abroad. The Mutual Educational and Cultural Exchange Act of 1961 (P.L. 87-256), more commonly known as the Fulbright-Hays Act, set the foundation for the Department’s Exchange Visitor Program, which has grown tremendously over the program’s history.
As you know, The Department’s Bureau of Educational and Cultural Affairs (BECA) oversees cultural exchange programs that wish to utilize J visas to sponsor nonimmigrant participants. In doing so, they must satisfy certain criteria, which include assurances that the program is not to fill staff vacancies or adversely affect U.S. workers.
In the inaugural year of the Exchange Visitor Program, the Department issued fewer than 50,000 visas for purposes of educational and cultural exchange. Since then, the number of cultural exchange visas has risen exponentially to more than 300,000 J visas. For at least the last five years, the summer work category of the program has consistently received more than one-third of visas issued. This subcategory, like others in the program, requires that the visa holder receive the same pay and benefits from the employer as U.S. workers in the same or similar position in concert with the overall program requirement that the visa holders’ work will not adversely affect U.S. workers.
Despite the Exchange Visitor Program’s policies that include written protections to ensure that the activities performed remain consistent with the educational and cultural goals of the visa program, several government and independent reviews of the Exchange Visitor Program over the last several years have indicated that oversight and enforcement are weak and that the BECA was unable to sufficiently monitor the program.
Though I was encouraged by the Department’s recent efforts to address the potential victimization of program participants through a recently issued rule (76 FR 23177), I remain concerned that the program lacks sufficient oversight of program sponsors and enforcement of the protections against abuse to maintain the integrity of the cultural and educational components of the program while ensuring that American workers are not adversely affected.
In this vein, I request that you provide an outline of the steps that the Department has taken to ensure proper oversight and enforcement to protect against possible misuse of the visa program as it pertains to the protection of U.S. workers. More specifically, what are the tools that the BECA utilizes to certify that the program does not adversely affect a U.S. worker? And, are these tools adequate in your estimation?
I appreciate your attention to his matter and hope that we can work together to maintain the true intent of the Exchange Visitor Program as an educational and cultural exchange that can serve as an important diplomatic tool while also protecting the interests of American workers.
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