In Federal Court, Exploited Foreign Workers Score Big Win

If asked to identify the most unnecessary visa, hurtful to American workers and prospective workers, an answer would be impossible to give. Among the dozens of employment-based visas that the federal government issues, a strong case can be made to discontinue, or at least dramatically cut back, all of them.

When exploited foreign workers finally get justice from the employers and intermediaries who took advantage of them – a rare but heartening occurrence – a two-fold benefit should result. One, some of the back wages stolen from international employees in terms of underpayment will be restored. Two, future employers and the brokers that place the employees may take note, and clean up their unscrupulous, if not criminal, behavior.

Case in point: the Associated Press reported and the Economic Policy Institute analyzed a court decision that ruled in favor of exploited immigrants involved in the U.S. State Department’s Au Pair program, one of 15 programs in the State Department’s J-1 Visitor Exchange Program. American families hire about 20,000 au pairs annually, frequently through nongovernment placement agencies or for-profit third-parties which charge fees to the au pairs and the families.

Over the years, the State Department has gradually ceded management and oversight of the J-1 program to those same for-profit and nonprofit sponsors who act as labor recruiters. As a result of the State Department’s callous indifference to the well-being of the foreign workers it encourages to participate, too often the au pairs are underpaid and subjected to substandard and even abusive treatment.

The au pair program has an extensive, ugly, even scandalous, three-decades long history that Politico Magazine summarized in its 2017 story, “They Think We Are Slaves.” Included in the story was the inconvenient fact that in 2015 the State Department received 3,500 mistreatment complaints from au pairs. Most went uninvestigated and unreported.

But the latest au pair story has a happy ending. A Denver federal court announced a proposed $65.5 million settlement on behalf of 100,000 au pairs, mostly women, who worked in the U.S. during the last decade.

In their suit, a dozen Colombian, Australian, German, South African and Mexican au pairs claimed 15 intermediaries colluded to keep their wages low, and ignored overtime and state minimum wage laws. The lawsuit also alleged that families assigned menial, demeaning duties unrelated to childcare.

The J-1 visa has its roots in the 1961 Fulbright-Hays Act intended to promote cultural exchange and good will between the U.S. and participating nations. Instead, J-1 visa-related programs quickly devolved into low-wage worker scams that displaced American youths seeking seasonal employment. Reports from the General Accounting Office and the State Department Inspector General concluded that the J-1 visa results in lost American jobs.

Consider the myriad incentives that employers have to hire J-1s. The visa has no prevailing wage requirement, basically an open invitation to underpay. Employers are exempt from paying Social Security, Medicare and federal and state unemployment taxes to J-1 workers. At the same time, J visa holders must shell out for their own health insurance – another huge savings to employers. Finally, employers are not required to post job openings or recruit U.S. workers.

Yet neither Congress nor the White House will call to end the flawed visa. Return to the question the first paragraph poses. The J-1 is a federally sanctioned cheap labor program that often generates ill will, takes criminal advantage of unsuspecting and, until recently, voiceless immigrants. No valid reason exists for the visa to continue.

Americans who need but contend that they can’t find quality childcare should offer higher wages and better working conditions – the historic and always successful solution to labor shortages.