Immigration Laws: February, 1998 - Number #5

Employment. The US issues about 20 types of nonimmigrant visas that permit employment, among them A visas for foreign government officials and NAFTA TN visas for professionals from Canada and Mexico employed in the US. Nonimmigrant visas permit foreigners to be in the US for a specific time and purpose.

Nonimmigrant visas that permit employment are meant to fill vacant US jobs; add to the supply of US talent; facilitate US business; enrich US life with foreign athletes and entertainers; and permit foreign students to work and learn in the US. Most categories of nonimmigrant workers are not limited or capped, but there is a limit of 65,000 H-1B visas a year and 66,000 H-2B visas a year.

US officials who administer these programs are instructed not to grant them to people whose aim may be to remain in the country. All foreigners applying to enter the US temporarily are assumed to be intending immigrants, and the burden is on the foreign visitor to prove that she will, in fact, return to an established residence abroad when US studies, the job, or other reason for being in the US ends. Two separate agencies, the Department of State's consular offices abroad, and the Immigration and Naturalization Service at US ports of entry, have the authority to decide that a would-be temporary visitor may be an intending immigrant, and to deny that person admission, even if her US employer has received certification to employ her temporarily.

On the other hand, the US allows non-immigrant visa-holders in most categories to bring their families with them to the US, to be treated as employees in the US labor market, and thus to be protected by minimum wage and union-organizing laws on the same basis as US workers, and to adjust to permanent resident or immigrant status while in the US. The exceptions to the adjustment-to-immigrant option are trainees and exchange visitors, who must return home for six months to two years.

Marianas. The Senate Committee on Energy and Natural Resources is expected to consider a bill in February 1998 that would limit the use of foreign workers in garment factories in the Mariana Islands, a US commonwealth since 1986 that is about 1,800 miles from China. About $700 million worth of apparel was produced in Saipan factories in 1997, labeled "Made in USA," and shipped to the US.

Most of the Marianas' 30 factories are owned by the Chinese and South Koreans. Northern Marianas ranks fifth in the world as a US supplier of cotton knit tops, ahead of Turkey and Hong Kong. The pending bill would raise the island's minimum wage from $3.05 to the US standard of $5.15 per hour, which may reduce the attractiveness of importing guest workers to sew garments in the Marianas.

Under the proposed legislation, by 2000, half of the workers in each factory would have to be US citizens, legal immigrants or residents of the other islands of Micronesia. About two-thirds of the 60,000 workers in Saipan, where 90 percent of Marianas residents live, are foreigners, mostly Chinese, Filipinos, Bangladeshis and Thais. Some of the workers say that they paid $5,000 to labor brokers for $1,000-a-month jobs, and were then overcharged for accommodations in Saipan and not paid promised wages.

For years, there have been complaints about conditions for the foreign workers in the Marianas. Both Democrats and Republicans complain of slave labor conditions on the islands. But the Marianas have been able to woo enough supporters in Congress to prevent changes.

According to a report by the New York Times, the Commonwealth of the Northern Mariana Islands sponsored trips for dozens of Congressional representatives and their staffs, including House Majority Whip Tom DeLay (R-TX), who visited Saipan in December 1997. DeLay vowed to oppose efforts in Congress to cut down on the use of foreign workers in the Marianas, calling the practice of importing workers to make "Made-in-America" garments a "free-market success." DeLay urged the US to consider a similar program "where particular [US] companies can bring Mexican workers in [at] whatever wage the market will bear."

Au Pairs. The US exchange visitor program issues J-1 visas to foreigners coming to the US as part of a cultural exchange program. Exchange visitors normally obtain visas to remain in the US for the period of their program, plus 30 days, with further extensions possible. A J-1 visitor must leave the US for at least two years before applying for permanent residence status.

One part of the J-1 program is explicitly geared to US work--the au pair program, which was made permanent by 1997 legislation. The US Information Agency, rather than the US Department of Labor, administers the au pair program, which has brought about 50,000 European domestic helpers to the US since it began in 1986; about 8,000 are expected in 1997.

The au pair program--au pair means "as an equal," because an au pair is to be treated as a member of the family-- is meant to provide an educational and cultural exchange "with a child-care component." Under regulations adopted in February 1995 to curb past abuses, US households must pay au pairs at least $155 weekly for a maximum of 10 hours a day and 45 hours of responsibility a week. Au pairs caring for children under two must be at least 21 years of age and have 200 documented hours of child care experience.

Eight agencies are certified to bring au pairs into the US, and they charge US families about $3,000 to $4,000 to find an au pair for them and to counsel the family and the visiting foreigner while they are together. One agency advertises that au pairs are "cheaper than day care." Most au pairs must post a bond with the agency that arranges for them to enter the US.

In November 1997, a British au pair, Louise Woodward, was convicted of second-degree murder when the baby in her care died, but the judge reduced her crime to manslaughter and sentenced her to time-served, resulting in her immediate release. That month, the Wall Street Journal carried an op-ed piece that argued for admitting child-care guest workers, on the grounds that au pairs are too young and inexperienced, and that it was too difficult to have unskilled immigrants admitted as child-care workers. If farmers can "bring in guest workers to pick fruit, why not a similar program for qualified nannies and other child care workers?" the article asked.

There are about three million day care workers in the US. Turnover among them is high--half are expected to quit their jobs in 1997. The average cost of day care in an out-of-home center is $74 a week, with parents paying an average of 70 percent of the cost.

Nurses. In January, the US government broke up a ring that brought nurses into the US fraudulently under a temporary foreign nurses program intended to alleviate nursing shortages. Five Americans led by Billy Denver Jewell of Lubbock, Texas, owner of 22 nursing homes, pleaded guilty of submitting more than 1,100 fraudulent petitions to bring in registered nurses; about 35,000 H-1A visas were issued to foreign nurses between 1989 and 1996.

Many of the H-1A nurses became permanent residents and others remained illegally in the US after their visas expired.

The Filipina and Korean nurses paid recruiters in their countries $1,500 to $7,500 for visas, and Jewell collected another $1,000 to $1,500 from each nurse employed in his nursing homes. Instead of paying the nurses the prevailing wage of $14 per hour, Jewell paid them $5 to $9 an hour, which reduced average wages in the area to $10 an hour. The State Department's Diplomatic Security Service said this was the largest visa fraud investigation ever conducted in the United States.

The House immigration subcommittee held a hearing on November 5, 1997 on a bill by Rep. Bobby Rush (D-Ill.), H.R. 2759, that would permit up to 500 foreign nurses to enter the US each year to work at hospitals in poor neighborhoods. The H1-A program that admitted foreign nurses expired in 1996. In Illinois, full-time registered nurses earn $15 to $24 an hour; nurses from temporary agencies who fill in for missing nurses cost the hospital $55 per hour.

Religious Workers. The Immigration Act of 1990 permitted tax-exempt US-based religious organizations to offer R1 nonimmigrant visas valid for up to five years to temporary foreign workers employed in religious occupations in the US. Dependents who accompany them to the US receive R2 visas. Qualifying religious occupations include cantors, liturgical workers, translators, religious broadcasters and workers in religious hospitals. Foreigners cannot enter the US as religious workers to perform work ordinarily done by lay people. Nurses, for example, are not eligible.

An alien wishing to enter the US with an R1 visa must "for the two years immediately preceding the time of application for admission, have been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States." The Religious Workers Act of 1997 extended the program through September 30, 2000.

Foreign Students. The recent financial crisis in Asia has raised questions about the rights of foreign students to work in the US labor market. To qualify for an F-visa, foreign students must show that they have the financial resources needed to complete their US course of study, but they are eligible to work off campus if they face unanticipated "severe economic hardship" in the US.

There were many reports in newspapers around the US about Asian students affected by the economic crisis. Many students are asking for US government permission to work in order to pay for their education. The governments of Malaysia and Thailand are not subsidizing new students who wish to study abroad.

Australian universities report that Asian students studying in Australia have been affected by the currency crisis. Two Australian universities are offering easy borrowing terms for Asian students with cash-flow problems. There are about 50,000 Asian students, 12 percent of all students, in Australian universities. Over the past six months, the number of student visas declined in Australia. Visas from Singapore were down 32 percent; South Korea, 31 percent; and Hong Kong, 22 percent.

DOS. The Department of State was charged with denying nonimmigrant visas to Brazilians to visit the US on the grounds of their color, ethnicity, or looks, in a lawsuit filed by a dismissed foreign service officer who worked in Sao Paulo, Brazil. U.S. District Court Stanley Sporkin said that the practice of labeling applications for US visas--RK, rich kid; LP, looks poor; TP, talks poor; YAS, young and single; and LR, looks rough--as well as instructions that said: "Visas are rarely issued to [those of Arab, Chinese, and Korean descent] unless they have had previous visas and are older."

Under US immigration law, all persons wishing to visit are assumed to be intending immigrants, and the burden is on the foreigner requesting a tourist or student visa to prove that she is not an intending immigrant. Tight budgets and many applicants for visas force visa decisions to be made in some consular offices in 30 seconds or less. If tax records and other supporting documents are routinely falsified, then consular officers give more weight to appearance and speech.

Lizette Alvarez, "Congressional Fact-Finding in Saipan," New York Times, January 20, 1998. Valerie Strauss, "Asian Crisis Hits Students," Washington Post, January 19, 1998. Lee Hancock, "Nurses' cases to be decided individually in visa scheme," Dallas Morning News, January 16, 1998. "Australian help for stressed Asian students," Deutsche Presse-Agentur, January 16, 1998. Katharine Seelye, "U.S. Breaks Up Ring That Smuggled Nurses," New York Times, January 15, 1998. William Branigan, "Visa Scam Brought Hundreds of Nurses to Work in the US," Washington Post, January 15, 1998. John Omicinski, "Chinese skirting tariffs, stealing US jobs with Marianas' sweatshops," Ganett News Service, January 15, 1998.