The State Department announced today in the Federal Register that its Bureau of Educational and Cultural Affairs (ECA) will be conducting “on-site reviews” of 14 of the biggest sponsors involved in the Summer Work Travel (SWT) program, the largest category in the J-1 visa Exchange Visitor Program. “Sponsors” are the private sector entities to whom the State Department has outsourced the management functions of the J-1 program. Sponsors profit from fees paid by the student participants, and then contract with employers and staffing companies across the country that ultimately hire the J-1 students in a variety of industries, for example at national parks, amusement parks, restaurants, drug stores, canneries and factories. Last year, 132,000 foreign students from around the world came to the U.S. to work for four months in the Summer Work Travel program, making it one of the largest guestworker programs in the U.S.
EPI has previously detailed the numerous problems inherent in the entire J-1 program. The allegations that led to the recent strike by J-1 student workers at the Hershey Chocolate Company in Pennsylvania are clear examples – and have resulted in a handful of federal investigations. Thus, I welcome any review or evaluation of the program and the entities involved. Nevertheless, I am puzzled by today’s notice.
The Department claims that it will conduct these on-site reviews in order to “enhance its continued oversight and monitoring of designated sponsors” because it intends “to evaluate regulatory compliance” with the new regulations that went into effect in July. If that were truly what the Department intended to accomplish – then this notice in the Federal Register, and this type of “review” instead of an actual investigation – is far from the best way to determine whether the program is functioning properly
Why issue a public notice that affords all sponsors one-to-three months to prepare for an impending on-site review? Is this just a PR stunt?
And then there’s the substance of the on-site reviews, which is baffling. Before the actual on-site review takes place, which will last two business days, each sponsor will be notified in writing, and will have 10 business days to respond to requests for documents, and to prepare for the visit. If the State Department is supposed to be the cop on the J-1 beat (which it should be), then this is an odd way to uncover misbehavior. Giving the sponsors two full weeks to cover up, delete or destroy any evidence of wrongdoing will not help the State Department get to the bottom of it.
Also, many of the serious problems that occur in the program happen at the workplace – not the sponsor’s corporate headquarters – and are potential violations of labor and employment laws. The administrative functions and roles of the sponsors are less important than whether the J-1 student has been paid the minimum wage or was working in a safe environment. Thus, it would make much more sense to conduct surprise, on-site reviews of the employers where the J-1s are actually employed. That way the State Department could evaluate whether the students are safe and are being treated fairly – and if they’re not, the ultimate responsibility would fall on the sponsors, whose job it is to oversee and ensure that the employers are flying straight. If they’re not, then both the employer and sponsor should be kicked out of the program.
Another problem with State’s review is that officials will not be speaking with or interviewing the actual J-1 student participants about any problems they may have had with the program or their particular sponsor. As I’ve learned anecdotally from some colleagues who advocate on behalf of J-1 student workers, when State conducts an investigation regarding a particular complaint, its investigators almost never speak with the J-1 worker or the employer. Instead, they only speak with the sponsor, who has a financial interest in avoiding sanctions by State. This conflict of interest makes it highly unlikely that the sponsor will be a zealous advocate for the J-1 worker who may have suffered abuse, or that the sponsor will be forthcoming with any evidence that would make it look bad. Officials of well-established sponsors which have been in business for decades also have established relationships with the State Department staff, which can create inappropriate expectations between the investigator and the subject of the investigation. Ideally, the investigation would be at arms length. These visits will give sponsors an opportunity to personally lobby the Department about the final regulations, which have not yet been issued, and indeed on page 3, the Department admits as much, saying that these on-site reviews are “an opportunity for sponsors to provide feedback” about the rules generally.
The State Department’s review of some of the sponsors in the J-1 Summer Work Travel program could have been a step in the right direction, but by publicly notifying and giving sponsors time to prepare for it, and by not reviewing work sites or interviewing employers and J-1 student workers, the actual value of this action might prove to be negligible.