[V.G.]'s passport was confiscated by[her employers], who told her that she was not to leave the apartment alone. She was not permitted to use the telephone or the mails, speak with anyone other than the Alzankis [her employers], nor even to venture onto the balcony or look out the apartment windows. [The Alzankis] told [V.G.] that the American police, as well as the neighbors, would shoot undocumented aliens who ventured out alone.
-Findings in U.S. v. Alzanki, 54 F.3d 994 (1st Cir. 1995), a case involving V.G., a Sri Lankan domestic worker, employed by a Kuwaiti national studying at Boston University
In the past decade alone, tens of thousands of individuals, mostly women, arrived in the United States with special temporary visas to work as live-in migrant domestic workers. They work for foreign diplomats, officials of international organizations, foreign students and businesspeople, or U.S. citizens residing abroad but temporarily in the United States.
These domestic workers come to the United States to escape poverty in their countries of origin, to earn money to send back to their families, most often their children, and to save money for their futures. All too often, however, they become some of the world's most disadvantaged workers held captive by some of the world's most powerful employers, who exploit, abuse, degrade, mock, and humiliate them.
In the worst cases, the domestic workers are victims of trafficking-deceived about the conditions of their employment, brought to the United States, and held in servitude or performing forced labor. They work up to nineteen hours per day; are allowed to leave their employers' premises rarely and virtually never alone; are paid far less than the minimum wage, sometimes $100 or less per month; are ordered not to speak with individuals outside their employers' families; and are psychologically, physically and/or sexually abused. In these cases, workers' isolation is so extreme and the culture of fear created by their employers through explicit threats and/or psychological domination is so great that the workers believe they will suffer serious harm if they leave their jobs and have no choice but to remain in and continue laboring in abusive conditions.
While these most egregious conditions were present in at least five of the forty-three cases reviewed by Human Rights Watch, workers suffered one or more forms of abuse in the vast majority of employment relationships examined. Human Rights Watch found that workers are commonly paid significantly below the minimum wage and work long hours. Indeed, the median hourly wage in the cases reviewed by Human Rights Watch was $2.14, including deductions for room and board-only forty-two percent of the median federal hourly minimum wage of $5.15. The median workday was fourteen hours. Workers are also rarely free to leave their employers' homes without permission, resulting in the imposition of myriad restrictions on their freedom of movement, most often only being allowed to leave the employers' premises on their days off.
These workers come legally to the United States with A-3 visas if hired by diplomats, G-5 visas if employed by international organization officials, and B-1 visas if working for other foreigners or U.S. citizens. Nonetheless, their legal immigration status does not protect them from abuse similar to that suffered by the untold numbers of undocumented domestic workers in the United States. Ironically, their special visas exacerbate their vulnerability to abuse. Because they have employment-based visas, if these domestic workers leave their sponsoring employers, regardless of how abusive, they not only lose their jobs, like undocumented workers, but also their legal immigration status in the United States. Although certain workers may change employers, they may do so only under specific, rarely fulfilled conditions, and B-1 workers can likely never legally change employers in the United States. Because changing employers is difficult if not impossible, workers often must choose between respect for their own human rights and maintaining their legal immigration status.
Despite the often abusive treatment, migrant domestic workers with special visas are reticent to leave their employers or file legal complaints to enforce their rights. Many workers choose to endure human rights violations temporarily rather than face deportation. Others endure the abuses because their cultural and social isolation-lack of knowledge of U.S. law, few local contacts and friends, and inability to communicate in English-make the steps required to flee their employers, find alternative housing, and seek legal redress prohibitively daunting. Still others fear that if they leave their jobs and publicly complain of abuse, their powerful employers will retaliate against their families in their countries of origin.
Human Rights Watch found, however, that if a domestic worker does not leave her employer and assert her rights through a civil complaint or criminal allegations, it is unlikely that her rights will be protected. Agents of the governmental institutions responsible for protecting her are not likely to enter her workplace independently. The domestic worker labors in what has traditionally been referred to as the private sphere, a domain not historically scrutinized by government and often outside the reach of governmental enforcement mechanisms structured to protect workers in the public sphere. Neither the State Department, the Immigration and Naturalization Service (INS), nor the Department of Labor (DOL) monitors employer treatment of migrant domestic workers with special visas.
These domestic workers simply fall through the cracks of U.S. government bureaucracy. For example, although the State Department requires potential employers of most migrant domestic workers with special visas to submit employment contracts containing certain mandatory terms, the State Department does not enforce the contracts nor even keep them on file. The INS, for its part, has no records of workers' whereabouts, except for entry documents. The burden of ensuring employer compliance with these "mandatory" contract terms falls to the domestic worker herself.
Even if a domestic worker leaves her employer, losing legal immigration status, and files a civil complaint against the employer to seek enforcement of her employment contract and U.S. labor and employment laws, there is no guarantee that she will be allowed to remain in the United States to seek legal redress. There is also no guarantee that she will be permitted to work while her complaint is being considered, even though as an undocumented alien she does not qualify for federal public benefits, such as welfare, public housing, and food assistance, and could face extreme hardship if not provided work authorization. The INS has discretion to permit her to remain temporarily to pursue a civil action and to work while doing so, but there is no temporary visa for which that worker, as a victim of abuse, can qualify. Such visas are only available for domestic workers involved in criminal actions and meeting myriad other criteria specific to each category of visa.
Even if a domestic worker files a civil or criminal complaint against her employer and is allowed to remain in the United States during legal proceedings, her uphill battle to obtain legal redress for abuse is still not over. Live-in domestic workers are explicitly excluded by law from the overtime provisions of the Fair Labor Standard Act and from the National Labor Relations Act, which protects workers' right to organize, strike, and bargain collectively. They are also excluded through regulations from the Occupational Safety and Health Act, which provides for safe and healthful working conditions. In practice, too, live-in domestic workers are rarely covered by Title VII protections against sexual harassment in the workplace, as Title VII only applies to employers with fifteen or more workers. In some cases, employers enjoy diplomatic immunity and are not even subject to the criminal, civil, or administrative jurisdiction of U.S. courts. In these cases, unless the State Department seeks a waiver of immunity from the employer's country of origin and that waiver is granted, domestic workers cannot obtain legal redress in U.S. courts.