Wednesday, August 7, 2019
By Sarah H. Paoletti, Practice Professor of Law and Director of the Transnational Legal Clinic, University of Pennsylvania School of Law
Every year, tens of thousands of adolescents and young adults come to the United States with dreams of engaging in a rich program of cultural exchange through the J-1 Summer Work Travel (SWT) visa. The ideals are lofty – to provide students from across the globe the opportunity to “come to the United States to share their culture and ideas with people of the United States through temporary work and travel opportunities.” But the reality is very different. Instead of opportunities for exchange, those who come on the J-1 are often confined to labor and live under substandard conditions, and go largely unnoticed while they labor in hotels, restaurants, amusement parks and resorts across the country. Some are subjected to human trafficking.
For the past several years, the International Labor Recruitment Working Group, has been documenting exploitation in the J-1 program. Their findings were recently published in a comprehensive report, Shining a Light on Summer Work Travel, illustrating how systemic flaws in the J-1 Summer Work Travel (SWT) visa program contribute to exploitation by employers looking for cheap labor largely in the services industry, and calls attention to the ongoing failure of the federal government to adequately respond.
My first introduction to the J-1 program was in the Fall of 2006. The Transnational Legal Clinic at Penn Law received a call from a social service provider in Harrisburg, PA reporting on foreign-exchange students living in extremely cramped conditions for which they were being charged well-above market rate, and struggling to make ends meet on their earnings as employees at McDonalds and the Holiday Inn Express. When we met with the students, from a diverse range of countries including among others, Brazil, the Dominican Republic, Poland and Romania, they shared stories of their extremely overcrowded living conditions, long and unpredictable hours of work at McDonald’s and cleaning rooms at the local Holiday Inn Express, the injuries sustained, the isolation, and the fatigue. They mentioned the high fees they paid for their visa, and their unfulfilled expectations and hopes of traveling the United States before returning to school in their home countries. We filed a complaint with the Department of State.
In 2011, I was invited to Hershey, PA as part of a human rights delegation assembled by the National Guestworker Alliance to meet with a group of students on J-1 visas who were assigned jobs in manufacturing plants that boxed chocolates for the Hershey company. Those students shared markedly similar experiences to those I had met five years earlier. The promise of cultural exchange was left unfulfilled. Instead, the delegation found: participants had been were victims of fraud and coercion in recruitment and contracting; they were not paid fair wages and were subject to unlawful deductions; they were subjected to unsafe and sometimes abusive, exploitative and discriminatory working conditions; they were denied freedom of contract; their rights to freedom of association and to organize were interfered with; and they were subjected to threats, intimidation, coercion and retaliation, particularly those who sought to exercise their rights. There was one other commonality the students from 2006 and those from 2011: they all shared the same “sponsor” – CETUSA, the Council for Education Travel USA.
Following the Hershey students’ public protests, supported by the National Guestworker Alliance, the U.S. State Department subjected CETUSA to a two-year ban from participating in the J-1 cultural exchange program, finding that CETUSA was not only living up to its obligations to ensure a cultural exchange, but also finding abusive working conditions and threats from the company directed at those students who bravely complained. In addition, the State Department undertook a review of the program itself and promised reforms to ensure participating students were protected.
Nonetheless, as the ILRWG has documented and aptly demonstrated in Shining the Light, participants in the J-1 Summer Work Travel program continue to experience the same abuses that led to the temporary ban of CETUSA, clearly demonstrating that the abuses are the result of not just one bad actor, but of systemic flaws in the program.
Among the report’s key recommendations is for the U.S. government to recognize the J-1 program for what it is – a labor program – and to regulate it as such, in a manner that respects the ILRWG’s principles for fair recruitment. While the J-1 programs, including the SWT program, were initially created as exchange programs, operated and regulated by the U.S. State Department, it has grown significantly over the past several decades as a program for bringing in temporary workers. In 1996, there were 20,728 J-1 SWT participants. That number peaked at the end of the Bush Administration in 2008 at 152,726. The numbers dropped in subsequent years, but since 2015, those numbers are on a marked rise again from 94,728 in 2015 to 104,512 in 2018. Yet the Department of Labor plays no role in oversight of the program, while employers like Disney, McDonalds, Holiday Inn and Six Flags benefit.
Shining a Light, co-authored by ILRWG members Daniel Costa (Economic Policy Institute), Shannon Lederer (AFL-CIO), Jeremy McLean (Justice in Motion), Meredith B. Stewart (Southern Poverty Law Center), and Sulma Guzman (Centro de los Derechos del Migrante), comes at a critical time in national and global discussions around migration. Policy-makers are increasingly looking to temporary labor migration programs as a means to reduce irregular migration. Shining a Light provides evidence-based analysis and recommendations for addressing the common systemic flaws that can turn opportunity into abuse. Exploitation under any other name is still exploitation, and it’s time for Congress, as well as the Departments of State and Labor, to address the flaws in the J-1 and other temporary work programs that allow for exploitation in the name of cultural exchange and work.