J-1 Summer Work Travel Program Still Poorly Regulated
I’d like to attract your attention to this report from WJHG, a local news affiliate in Panama City, Florida. It’s a stark reminder of everything that’s wrong with the State Department’s large de facto guestworker program, the Summer Work Travel (SWT) program. For those not familiar with SWT, it is one of many “cultural exchange” programs in State’s J-1 visa Exchange Visitor Program; each year it allows around a hundred thousand foreign college students from around the world to come to the United States to work for four months in hotels, beach resorts, restaurants, and various other mostly seasonal businesses, in a variety of lesser-skill jobs.
In Guestworker Diplomacy and numerous commentaries, I’ve explained in detail how this temporary foreign worker program disguised as an exchange program was designed and is administered by an agency with zero expertise in regulating, monitoring, or enforcing labor- and employment-law related issues and is thus entirely unqualified to manage the program. This in turn results in a dysfunctional program where severe abuses and exploitation of vulnerable foreign student workers, and even human trafficking, takes place. The Southern Poverty Law Center has a new report, Culture Shock: The Exploitation of J-1 Cultural Exchange Workers, which provides numerous real-world examples of such abuse, exploitation, and criminal activity. But the perspective we get in the WJHG report from Scott Springer, the U.S. Immigration & Customs Enforcement/Homeland Security Investigations Resident Agent in Charge in Panama City, Florida, shows just how deep the problems are.
Agent Springer took the initiative to reach out to local J-1 “sponsors”—the private organizations to which the State Department has outsourced management and oversight of the Exchange Visitor Program—and offered to conduct information sessions along with local law enforcement and victims’ advocacy groups. His intention was to better inform J-1 student workers about what can go wrong in the program and how they can protect themselves. Agent Springer should be applauded for his candor and for working to protect the safety of vulnerable young student workers. Here’s what he’s observed that motivated him to offer his services:
J-1 Visa students are probably among our most exploited individuals on the beach. We kept seeing such a large number of problems here with the J-1 community, not with the students, but with the students being exploited by egregious employers.
The WJHG report also mentions Culture Shock, noting SPLC’s claim that the J-1 program has been “hijacked by employers and used as a source of cheap labor.” Agent Springer’s comments, based on his real-world experience with the J-1 program, substantiate many of the conclusions in the SPLC report:
Businesses who want to take advantage of a student, they do it in various ways. They pay them less than they would normally pay another worker, in some instances they pay them less than minimum wage. In some instances they try to hire them through a contractor. We see a lot of labor violations intertwined with potential trafficking activities, right here in Panama City.
Indeed, because of the sometimes dire economic situation resulting from these sorts of abuses (in addition to high program and recruitment fees), J-1 workers can be easy prey for criminal organizations seeking to use them as “money mules” for profits from cybercrimes perpetrated in the United States.
Let’s take stock of what we have here. The State Department is running a program that is so flawed that the Department of Homeland Security is publicly warning about the rampant abuses and exploitation J-1 workers are suffering at the hands of employers who want “cheap labor.” And DHS agents are actively trying to clean up the mess that’s left by “egregious” employers who exploit young workers and the sponsors who won’t protect the J-1 workers who pay for the privilege to work for such employers. Why isn’t the State Department conducting these information sessions on its own, instead of DHS?
Nearly two years ago I praised the improvements Deputy Assistant Secretary Robin Lerner and former Secretary of State Clinton made to the regulatory framework of the program. State also hired additional staff to monitor and enforce compliance with the terms and conditions of the J-1 program, which is good, but that handful of program staff only monitor and enforce compliance by J-1 program sponsors, and not at all by the thousands of employers nationwide who are the real perpetrators of abuse and exploitation in the program. It’s clear now that the problems are far bigger than any response the State Department is either willing or able to undertake.
This is unfortunate, and additional steps are needed. What more will it take to convince legislators from both parties that the J-1 Summer Work Travel program is rife with so many problems that, at a minimum, it needs to be suspended until it is restructured in a way that eliminates these serious forms of exploitation? Or shrunk to a size that State can adequately police? Despite mountains of evidence to the contrary and multiple public scandals, State Department officials continue to be in denial, still asserting that the J-1 program is “NOT a work program,” but “fundamentally a cultural exchange program” [emphasis in original]. Even well-known corporate immigration lawyer and former government official Carl Shusterman publicly admits the true nature of the SWT program, telling the Wall Street Journal that the program “is a cheap-labor program, nothing more,” adding, “since when is flipping burgers a cultural exchange?”
The State Department and other defenders of the SWT program are likely to respond that cultural exchanges are inherently valuable and enrich our country and society, and that eliminating the SWT program will thwart the goal of cultural exchange that the Fulbright-Hays Act of 1961 (the legislation that created the Exchange Visitor Program) intends to advance.
First, I completely agree that cultural exchanges are valuable and should continue, but SWT workers are usually employed full time in minimum wage jobs. Thus, even when things don’t go wrong, they often have little time or money left for any meaningful “cultural exchange.” Second, since the State Department and sponsors have not been able to prevent “such a large number of problems” and “a lot of labor violations intertwined with potential trafficking activities,” safety concerns for young student workers should trump the needs of employers who clamor for cheap, captive labor and the sponsors who financially benefit from providing it to them (earning millions of dollars every year from fees paid by students).
And finally, anyone who argues that ending the SWT program or significantly reducing the number of annual participants would hinder the ability of foreign students to visit the United States to learn about American culture is wrong. There are other J-1 programs that facilitate legitimate cultural, educational, and scientific exchanges, as the Fulbright-Hays Act intended. The J-1 students and scholars who come on Fulbright Scholarships to attend, teach, or conduct research at American universities, or to work for federal agencies as part of government exchange programs, are the best examples.
The argument doesn’t hold water in terms of sheer numbers either. According to the State Department, in 2012, 86,518 student workers participated in the SWT program, making it the largest program within the Exchange Visitor Program. The State Department issued a total of 313,000 J-1 visas to exchange visitors, and nearly 37,000 J-2 visas to their spouses and children that year. Even if the SWT program were completely eliminated in 2012, there still would have been 227,000 J-1 visitors engaging in various cultural exchange activities—and the Exchange Visitor Program would remain one of the country’s largest temporary immigration programs.1 In addition, because no statutory cap exists on the number of J-1 visas that the State Department may grant each year, State could respond to shrinking or shutting down SWT by expanding other legitimate J-1 programs for students, university professors, research scholars, and short-term scholars.
It’s now clear to almost everyone that the Summer Work Travel Program is in dire straits—and it’s a black eye on our immigration system. And because the noble goal of facilitating cultural exchanges will not be negatively affected if the program is shrunk dramatically or even eliminated, it’s time for President Obama and Congress to direct the State Department to suspend and fix the SWT program immediately. If State fails to act, Congress should eliminate SWT altogether.
1. It must be noted that evidence suggests major reforms are needed in other J-1 programs that permit full-time work, including the au pair, intern/trainee, doctor, and teacher programs. However, those programs are much smaller in scale compared to SWT. See, e.g., Meredith Stewart, Culture Shock: The Exploitation of J-1 Cultural Exchange Workers, Southern Poverty Law Center (2013), http://sp.lc/1jEVLWp; Janie Chuang, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, Harvard Journal of Law and Gender (Vol. 36, 269-343, 2013), http://harvardjlg.com/wp-content/uploads/2013/09/Chuang.pdf; and Marshall Allen, “Indentured Doctors,” Las Vegas Sun (Sept. 30, 2007), http://www.lasvegassun.com/news/2007/sep/30/indentured-doctors-how-it-happens-j-1-doctors-must/.