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April 28, 2006
Stanley S. Colvin
Director
Office of Exchange Coordination and Designation
Bureau of Educational and Cultural Affairs
Department of State
301 Fourth Street, SW, Room 734
Washington, DC 20547
Dear Mr. Colvin:
I am writing in response to Public Notice 5319, regarding the Department’s
intention to investigate the possible adoption of a pilot program to enable
foreign university students to work and travel in the United States for up
to 12 months.
The Department should proceed very cautiously, if at all, in establishing
such a program. While exchange programs in general are a valuable and
necessary form of public diplomacy, those exchange programs involving
employment have a very mixed track record, and currently the regulation and
oversight of these programs is inadequate to ensure that they will not
result in the exploitation of participants, that they do not contribute to
illegal immigration, that they do not present a national security
vulnerability, and that they will not adversely affect employment
opportunities for young people in this country.
Inadequate Regulations and Oversight. The Office of Exchange
Coordination and Designation has neither the resources nor the regulatory
tools to effectively run the programs. Meanwhile the size of the programs
have grown dramatically in recent years, from 205,000 exchange visas issued
in 1995 to 300,000 in 2001. Issuances dropped after 2001, but climbed back
to 275,000 in 2005. Adding to the workload of this office without a dramatic
influx of funding and training is simply asking for more trouble, and risks
undermining public support for exchange programs in general.
Many of the problems with the employment-related exchange visitor programs
have been well documented in government audits and media accounts. The most
recent Government Accountability Office report on the subject stated, “State
has not exerted sufficient management oversight of the Summer Work Travel
and the Trainee programs to guard against abuse of the programs and has been
slow to address program deficiencies. (Stronger Action Needed to Improve
Oversight and Assess Risks of the Summer Work Travel and Trainee Categories
of the Exchange Visitor Program, GAO-06-106, October, 2005).” The report
went on to list a number of problems, including infrequent site visits to
verify that exchange programs and sponsors are adhering to the program’s
purposes and rules, vague or overly general regulations, unsatisfactory
record-keeping, and feeble enforcement tools.
In the absence of sufficient resources to oversee the programs, the State
Department has in effect abdicated the oversight of many exchange programs
to the program sponsors, many of whom have a significant financial stake in
the programs. Some sponsors function as traditional non-profit exchange
organizations; others function more like for-profit employment agencies,
earning large fees by allowing third party host organizations to participate
under the umbrella of their sponsorship authority.
Though under the statute the sponsors are responsible for making sure the
third party hosts abide by the program rules, in practice, there has been
little incentive for them to pay much attention. This lack of oversight can
have negative results for the participants. Sometimes the training provided
is sub-standard or non-existent, with participants relegated to “flipping
burgers” instead of receiving management training (as happened when a
Philadelphia-area Wendy’s sponsored Trainees several years ago). In some
cases, participants have been treated badly, receiving little net pay, or by
being forced to live in sub-standard housing, as was the case when a Vermont
mountain resort hosted foreign exchange visitors as chambermaids and bar
tenders several years ago.
One authorized sponsoring agency, the Cultural Exchange Network, or CENET,
recently settled out of court in a law suit in Pennsylvania involving
electricians who were brought from Eastern Europe under the auspices of a
Trainee program, but were actually employed at below-market rates doing
routine electrical work for large contracting companies. CENET sought to
avoid liability for one electrician’s serious on-the-job injuries that were
attributed to the electrician’s poor English skills (his language
certification was forged). Sponsors typically charge third parties $800 or
more per visitor, and can collect hundreds of thousands of dollars per year
in these fees. The third party hosts have in some cases leased out the
foreign “trainees”, collecting fees of hundreds of thousands of dollars a
week. Some sponsors operate lucrative side businesses related to the
exchange programs, such car leasing companies and insurance brokers. (See
“Report to the Nationals Education Association on Trends in Foreign Teacher
Recruitment,” by Randy Barber, June, 2003).
Even when the State Department decides to act on a problem that is brought
to its attention, its experience has been that the sanctions provided in the
law are difficult to enforce, and have been challenged in local courts.
According to the GAO report, State is working on revising these laws, but
the process has been very slow.
Exchange Visitor Compliance with Immigration Laws is a Problem. Data
from a variety of sources indicate that exchange visitors may have a high
propensity to violate the terms of their non-immigrant visa and remain
illegally in the United States. The exchange visitor visa also is used as a
springboard to legal permanent status, which is legal, although clearly not
the intent of the program. The GAO auditors found that the departure of only
about 36% of recent exchange visitors could be confirmed by DHS, while 24%
of recent visitors were possible overstayers, and the status of 40% could
not be determined. Validation studies completed by U.S. consulates abroad
have indicated overstay rates of more than 25% in some countries. The system
created to monitor student and exchange visitor compliance (SEVIS) generates
for the immigration enforcement agency an average of 500 cases per week of
foreign student and exchange visitors who appear to have gone out of status.
While these statistics certainly point to compliance problems in the
exchange visitor program, without better information it is impossible to
determine which kinds of programs and which kinds of visitors present the
most risk for overstay. There are programs that appear to be working as
intended and seem to have low overstay or adjustment rates. However, neither
the State Department nor the Department of Homeland Security has a reliable
way to assess the risk involved in launching a new exchange program. The
SEVIS program and the partially-implemented US-VISIT program will eventually
provide the data that the agencies need to assess risk, but the capacity is
not there yet. What is lacking is an exit-recording system that will enable
DHS to know when visitors have departed, and a greater level of compliance
enforcement activity to encourage visitors to comply with the terms of their
visa.
It would be most prudent to refrain from launching new exchange visitor
programs until better information on compliance is available. All other
conceptual problems with long-term or work-related exchange programs aside,
it may be possible for the State Department or DHS to make the case that
visitors from the three beneficiary countries for the new expanded Summer
Work Travel program are low-risk, perhaps using the Arrival Departure
Information System (ADIS). If so, the Department should make public the data
that support this finding, so that an informed debate over the merits of the
program can be held.
In any event, Congress, State and DHS should agree on and formalize the
objective criteria that will be used to determine which countries and which
kinds of visitors will be allowed to participate in exchange programs, much
as these agencies have set standards for participation in the Visa Waiver
Program. For instance, countries should be required to demonstrate low visa
overstay rates and low visa refusal rates before new non-academic exchange
programs involving non-government sponsoring organizations are allowed.
In addition, the criteria for participation should include stricter measures
to encourage visa compliance, such as requirements that participants
purchase a round-trip transportation, and be subject to exit-recording.
Program sponsors and third parties should be sanctioned and/or barred from
future sponsorship when foreign visitors do not comply with program rules.
Visa Compliance Problems = National Security Problems.
Terrorists, criminals and those seeking better economic opportunities will
use any avenue available to enter the United States. Any weakness in our
immigration system is ripe for exploitation. According to Janice Kephart, a
terrorism expert and former staff member of the 9/11 Commission, “The attack
of 9/11 was not an isolated instance of al Qaeda infiltration into the
United States. In fact, dozens of operatives . . . have managed to enter and
embed themselves in the United States, actively carrying out plans to commit
terrorist acts. . . . For each to do so, they needed the guise of legal
immigration status to support them. Al Qaeda has used every viable means of
entry. The longer the duration of the permissible length of stay granted by
the visa or the adjustment of status to permanent residency or
naturalization, the easier the terrorist could travel both within and
without the United States (Immigration and Terrorism: Moving Beyond the 9/11
Staff report on Terrorist Travel, Center for Immigration Studies, September,
2005).”
In the face of this threat, before creating yet another
long-term non-immigrant visa, policymakers need to be extremely confident of
our immigration agencies’ ability to detect dangerous, or even unqualified,
visitors. In my view, for the reasons outlined in the preceding sections,
DHS and State have yet to implement the systems to justify either the
expansion of exchange visitor admissions or an extension of the authorized
duration of stay for exchange visitors.
No Economic Case for Long Term Work-related Exchange
Programs. Labor economists generally agree that the United States does
not suffer from a shortage of either young or less-skilled workers. In fact,
researchers have shown that job opportunities for young people who would be
seeking the same kinds of jobs that would be available to Summer Work Travel
visitors are actually in decline. The summer youth job market has hit a
60-year low, with an unemployment rate for U.S. teenagers in excess of 60
percent in recent years (see “The Summer Job Market for the Nation’s
Teenagers,” by Andrew Sum et al, Northeastern University, May, 2003).
Unemployment rates for African American and Hispanic youths seeking summer
jobs have been even higher. With job opportunities scarce for American
youth, it makes little sense to bring in additional workers to compete with
them, especially when the exchange visitors typically earn a lower wage that
American youth could command.
If the Summer Work Travel program is to be expanded,
policymakers should consider adopting provisions to ensure that these
workers do not displace or depress earnings for U.S. youth. The best guard
against adverse effects is a numerical cap on the number of work visas
issued. A less effective but still reasonable approach would be to require
sponsors to show, for example, that the net earnings for the exchange
visitors are comparable to what similarly-situated U.S. workers would earn,
or to require sponsors to offer the same jobs to U.S. youth at the same
time.
Conclusion. Any changes to the nation’s visa
programs must be made with the nation’s best interests in mind. There are
few compelling reasons to expand the scope of the Summer Work Travel program
to allow participants to stay for longer periods of time, and several
compelling reasons to refrain from doing so.
The work-related exchange visitor programs benefit mainly
the sponsoring organizations and third party hosts, which realize
significant revenue streams from them. The program also benefits the foreign
visitors, who might have a positive experience and return to their country
with new skills and a fondness for America, but who are also at risk for
exploitation, bringing a very negative experience, or who may intend to use
the visa as a springboard to permanent residence, legal or otherwise. While
an expansion of the Summer Work Travel program would bring some benefits to
certain constituencies, it also brings some substantial risks. If not
properly managed, it could add to illegal immigration and provide an
opportunity for terrorists or criminals to enter and stay in the United
States. Moreover, the Summer Work Travel program is not filling an economic
or labor need for the United States, but may be exacerbating an already
difficult employment outlook for youth in this country.
Thank you for the opportunity to submit these comments.
Feel free to contact me if you have any questions. I can be reached at
(508)346-3380.
Sincerely,
Jessica M. Vaughan
Senior Policy Analyst
vaughanjessica@comcast.net
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