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Colorado: Visa program used by resorts under scrutiny

Some resorts in Colorado may be displacing American workers by hiring foreign workers under the J-1 cultural exchange visa program.

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


Secretary 


United States Department of Stat

e
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.  

Sincerely,

Mark Udall

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8 Responses

  1. We have reached the point of no return, there is no going back, regardless of what the tea partiers think/believe/preach! Nor is there any so called free lunch. Somebody has to pay the bill[s], unfortunately, it is the American consumer, whether he/she believes it or not. Keep that in mind when you shop/entertain/indulge in commercial venues. Also, as your children grow up, you might also think about where they are going to get their first, second, third job starting out.

  2. Why hire foreign workers at all?

    There are too many Native Americans, disadvantaged city youths, Military Veterans, and others here in the USA looking for the chance to get a job.

  3. The Senator’s assessment of this program is as flawed as the work of the Economic Policy Institute and the reporting in this article. Foreign students participating in this program do not displace American workers. The U.S. Department of Labor has studied these programs found them to be so small as to be irrelevant to the U.S. economy. The programs have significant rules and protections both for the U.S. and the students; there is no cheap labor involved here. If anyone had checked with the ski areas, they would have discovered they hire these workers becuase all those Americans you’re talking about don’t apply for and/or want the jobs. Moreover, anyone who looked at the regulations and program oversight would know that this isn’t a case of the fox guarding the henhouse. 82% of Americans report being fedup with Congress. It’s this kind of poorly thought out letter to the Secretary of State, along with shoddy reporting and treating second rate research as first rate facts that makes us all sick and tired of these people. The changes that are needed are not in the programs and those that work hard to regulate them, but in those that take cheap, uninformed shots at something they know little about and/or those that take singluar incidents and try to extrapolate them to an entire class of programs that have servied the U.S. admirably. Have there been mistakes and/or abuses, of course, but over the last decades hundreds of thousands of students and our country have benefitted from these programs and they should not be limited, but further expanded to our benefit and the benefit of American industry includng resorts.

    • Hey Stevan, don’t shoot the messenger — and thanks for reading. I agree that the program has huge benefits and Udall acknowledged that in his letter, which you would have seen if you had taken the time to read it.

      But clearly, based on not just one report, but three different investigations over a span of 10 years, there are abuses, and not just by the ski areas. I know that the ski areas at least make an effort to comply with the letter, if not the spirit, of the program’s guidelines, by hosting weekly inter-cultural dinners, and personally, I’m a big supporter of open borders. I think people should be allowed to live and work pretty much wherever they want. This world is far to small in the heavens to divide it up into little blocks of different political colors on a map.

      But if the ski resorts and other companies need to use this particular program as a loophole to get seasonal workers, perhaps they should re-examine their economic model. Since it sounds like you know a little something about this program, you will know that not being able to hire Americans for those short-term seasonal positions is only part of the story.

      I know that the ski industry, along with other seasonal industries, has pushed to expand other visa programs to help meet that short-term seasonal labor need. That’s probably the appropriate path to follow, along with comprehensive immigration reform.

  4. This is just another article inspired by the “nonpartisan” Economic Policy Institute report. EPI misses the point, however. WAT is a public diplomacy J-1 visa program, not a guest worker program. Our country already has a seasonal guest worker program under H2B visas. This program is completely unsupervised, as it does not fall under the auspices of the Dept. of State’s Citizen Exchanges office. Strangely, it doesn’t seem to bother anyone. EPI is completely silent about this large guest worker program. Sen. Udall, judging by his letter, does not seem to be aware about the H2B visa either… Really, what is the impact of H2B workers on the Colorado ski resorts? And what is the impact of the “undocumented workers” on Colorado’s economy? Why beat up on an insignificant number of overseas college students who help repair our country’s image around the world? The benefits of J-1 programs are disproportionally greater than the costs.

    Back to the EPI’s claim to be “nonpartisan” – there is a reason why Jesus never seems to appear to Buddhist monks. EPI is financed primarily by large trade unions, so it is just another study that starts with a conclusion and proceeds to look for proofs.

    As far as hiring Americans, our student exchange organization had dozens of part-time and temporary openings for local coordinators accross the U.S. this Spring. We were unable to fill most of them. We find it almost impossible to compete with “tax-free income” from unemployment insurance. My colleagues from other exchange organizations have similar observations.

    Finally, the students are not helpless, they are adults, they have embassies, they have local supporters in every town they work in, and America is a reasonably benign country that prides itself on being nice to foreign students. The J-1 students report basically wonderful experiences, are happy to come, often come for two or three summers/winters, so if the program were such a disaster, it would have foundered long ago.

    • Oh, gee, labor unions protecting jobs … what a novel concept. Anyway, see my previous response for more detail, but basically, nobody wants to abolish the program, and nobody is saying it’s a bad deal for people using the program. But it’s pretty clear from the evidence outlined in three reports spanning 10 years that there is some abuse. Perhaps there’s a way to make it better, so it meets the original intention AND enables foreign people to hold jobs while they’re on a cultural exchange, while at the same time making sure that it’s not displacing American workers. Maybe a flexible number associated with the visa program that’s pegged to U.S. unemployment, or something along those lines …

      • Thank you for your answer, Bob… Well, yes, labor unions are formed for that purpose – no argument there. My point was EPI shouldn’t go around pretending to be “nonpartisan.” There is nothing wrong with a think-tank supporting labor, is there?

        Any program that deals with thousands of people, both foreign and domestic, will experience some misunderstandings, problems, even abuses. Human nature being what it is, the programs will never be 100% problem free. (Are our own college kids problem free?) Our goal is to minimize abuses and I believe we already do outstanding job at it. Is there space for improvement? Honestly, I don’t know… The level of Federally mandated supervision of our students by our organization is unbelievably high. (I bet it is higher than parental supervision of our own college students. I don’t know many U.S. parents, for instance, who check up on their 22 year olds every month(!) in such a great detail.)

        Due to the crash of our $ versus other currencies, the students’ U.S. earnings, when converted to their home currency, are quite measly. The new generation of J-1 students increasingly come here more for cultural and language reasons, than to make money. Many foreign students find their own seasonal jobs here. The jobs are posted publicly, so any American can also apply. Overseas students have no particular advatage when competeing for jobs. They are paid the same as any American youngster, so let’s not play victim.

        By the way, we have reciprocal programs for American college students to work overseas. There just isn’t much interest among our young people. Who knows, as the $ tanks even more against foreign currencies, perhaps the interest in overseas seasonal jobs may revive… Let’s hope there isn’t another Chinese or European EPI to try to limit them.

  5. As the collective voice of the international educational and cultural exchange community in the U.S., the Alliance for International Educational and Cultural Exchange applauds Sen. Udall’s interest in the Department of State’s Exchange Visitor Program. We share his goals of protecting both jobs for American workers and the well-being of J-1 exchange participants, and ensuring that the Exchange Visitor Program continues to be conducted at the highest levels of quality and remains consistent with its mission as a cultural exchange and public diplomacy program.

    The Summer Work Travel (SWT) Program, which Sen. Udall specifically references, is one category of the Exchange Visitor Program (other categories include high school students, university students and research scholars, camp counselors, interns, trainees, and au pairs). SWT, which provides opportunities for international students on summer break from their home universities to visit the U.S., is an educational and cultural exchange that for over 50 years has served as an important diplomatic and public diplomacy tool. Through interaction with their host employers, their American coworkers, and American and international tourists, SWT students are able to enjoy true cultural exchange experiences while underwriting the cost of their living and program expenses through temporary employment, for a maximum of four months.

    Through SWT, students who wish to experience American culture outside of an educational context have the opportunity to engage in real-world work experiences side-by-side with American colleagues. After completion of their work assignments, participants have the opportunity to spend 30 days touring in the U.S. Sponsor surveys consistently show that more than 90 per cent of participants have an excellent experience with the program and return home with more positive views of the U.S. and of Americans. Because students from all academic disciplines are eligible to participate in the program, SWT serves American interests by building a reservoir of long-term goodwill toward the U.S. in virtually all sectors of society in priority countries such as Russia, China, Brazil, Ukraine, and many more.

    J-1 sponsor organizations and the Department of State work hard to protect international students from improper job placements, unsuitable housing, criminal activity, and any other abuse. The Department’s SWT regulations require that employers pay international students the same wage as their American colleagues. Students are not required to stay with one employer and may change jobs or locations, with the approval of their sponsor organization. To provide support for students, sponsors are required by regulation to maintain monthly contact with them, as well as a 24/7 toll-free help line. State Department regulations also require that students must be pre-placed in jobs before arrival in U.S. (except those from Visa Waiver countries), and that all of these jobs must be fully vetted and verified as suitable by sponsors before the students can begin work.

    Both sponsor organizations and the Department of State also strive to protect the interests of all American workers and ensure that Americans are not displaced from jobs. The community of employers that utilizes J-1 students does so as a supplement to their American workforce, not in place of it. Sponsors find that employers try to hire Americans first, before looking to hire international students. Furthermore, participation in SWT fluctuates with employers’ ability to secure appropriate local workers for these temporary positions. In the last several years, as the number of American applicants for seasonal work has increased, the number of international students hired has significantly decreased. According to U.S. government figures, the total number of Summer Work Travel J-1 visas issued has declined by nearly 23 per cent since FY 2007 (data courtesy of http://www.iawg.gov/reports/annual/).

    For more information on the Exchange Visitor Program, please visit http://www.j1visa.state.gov.

    For more information on the Alliance, please visit http://www.alliance-exchange.org.

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