V. U.S. GOVERNMENT PROCEDURES, GUIDELINES, LAWS, AND REGULATIONS GOVERNING SPECIAL DOMESTIC WORKER VISAS

The State Department and the INS have established procedures and policies governing special visas for domestic workers. State Department policies include pre-conditions for visa issuance, visa registration, and steps that a worker must follow if she wishes to change employers in the United States. INS policies include procedures to be followed if a worker wishes to extend her stay with her current employer and if she leaves her employer, thereby losing legal immigration status. The Department of Labor, for its part, does not review applications for special migrant domestic worker visas, as it does many other migrant worker visa applications, and performs no follow-up monitoring or investigations to verify employer compliance with employment contract terms and conditions. The Department of Labor's only contact with migrant domestic workers with special visas is through the rare worker complaint filed with the Department of Labor Wage and Hour Division. The INS and State Department policies and procedures, along with applicable laws and regulations, combined with the Department of Labor's lack of involvement in the administration of these visas, create an employment-based visa structure that contributes to domestic workers' susceptibility to abuse-a sensitive issue for U.S. government officials, most of whom agreed to speak with Human Rights Watch only on the condition of complete anonymity, refusing even to let us identify their offices or positions.¹²¹

Visa Registration
A-3 and G-5 visas are registered with the State Department Office of Protocol, which keeps records of the number of these visa holders in the United States at any one time. In contrast, B-1 domestic worker visas-like all other nonimmigrant visas for employment-are not registered with the State Department.¹²² While applicants for most other nonimmigrant work visas must submit documents containing personal data and basic employment and contact information to the INS prior to visa issuance, the INS plays no role in the B-1 visa issuance process and lacks this information on B-1 domestic workers.¹²³ As a result, the only governmental record of a B-1 domestic worker's presence in the United States is her I-94 entry form, registered with the INS at the border and entered into an INS database, which an INS official admitted is "not all that foolproof."¹²⁴ No registry exists of B-1 domestic workers, however, and the U.S. government does not know how many B-1 domestic worker visas are issued annually.¹²⁵ Commenting on the B-1 domestic worker, one INS official asked rhetorically, "How is anyone in the U.S. going to know that this person is here because they're employed with a particular employer? Where is it in any system anywhere?"¹²⁶

Visa Issuance and Employment Contracts
In contrast to other employment-based temporary visa programs, mandatory employment conditions for migrant domestic workers with special visas are not set forth in U.S. law or regulations.¹²⁷ Instead, they are established as employment contract requirements in the State Department Foreign Affairs Manual (FAM)-the internal code of policies for the State Department and Foreign Service.¹²⁸ For A-3 and G-5 domestic workers, additional suggested contract provisions are set forth in State Department circular diplomatic notes, but, as recommended rather than mandatory provisions, they do not preempt the FAM.¹²⁹ An employment contract containing the FAM requirements must be submitted as part of a domestic worker's visa application to a consular office abroad,¹³⁰ yet the State Department asserts that it is "not in a position to enforce" the contracts once the parties are in the United States and, therefore, does not maintain copies of the contracts on file.¹³¹ At a "few" consular posts "with the highest volume," the State Department has begun to distribute information brochures for A-3 and G-5 workers, explaining the required contract provisions and providing the telephone number of the Worker Exploitation Task Force Complaint Line for workers to call if they "believe that these rights are not being observed."¹³² No such brochures are provided to B-1 visa recipients.

Failure to codify FAM contract requirements in law or regulation as mandatory employment conditions means that, though a prospective employer must agree to the requirements when applying to employ a migrant domestic worker, no governmental department or agency is responsible for enforcing them during the employment relationship itself.¹³³ The failure also means that, unlike many other nonimmigrant workers, a domestic worker with a special visa has no right to file a civil complaint against her employer based solely on violation of these governmental requirements. Instead, any civil complaint must be based on violation of other U.S. law provisions, such as failure to pay the minimum wage or breach of the employment contract. As neither the State Department nor any other government department or agency keeps records of the contracts and domestic workers frequently do not receive copies of their contracts, often no written record of the contracts exists, making breach of contract actions difficult.¹³⁴

Such weaknesses in the State Department-mandated contract regime, combined with workers' reluctance to pursue legal redress for breach of contract, discussed below, has contributed to the failure of many employers to take contract requirements seriously. The vast majority of domestic workers whose cases Human Rights Watch reviewed had either written or verbal employment contracts.¹³⁵ In twenty-seven of the thirty-three cases in which domestic workers, court opinions, affidavits, or civil complaints described terms and conditions of employment contracts, domestic workers claimed that one or more contract terms were breached.¹³⁶

Seven domestic workers explained to Human Rights Watch that their employers explicitly told them that their employment contracts were signed to satisfy U.S. consular offices' requirements, were not binding, and were not intended to govern their employment relationships in the United States. Five recalled being so informed while still in their countries of origin and two after arriving in the United States. Castro, a Peruvian domestic worker employed by a Latin American World Bank official, recounted that her employer told her that she had to sign the contract, even though the employer could not afford to pay the salary listed therein, because "that is what the government requires . . . These contracts are formalities that the United States asks for.'"¹³⁷

Natalia Vásquez, a Peruvian domestic worker employed from 1998 through the present by a Latin American diplomat, said that she signed a contract stating that she would earn $1,000 per month, but when she arrived in the United States, her employer erased the $1,000 and wrote in $600, saying to her that "the contract was so they [the U.S. consular office] would give [her] the visa. With $600, no visa."¹³⁸ Similarly, Martínez, a Peruvian domestic worker employed from November 1999 through February 2000 by a representative of a mission to the OAS, recalled that when she arrived in the United States, the employer's wife said to her that the contract for $800 per month was "only for the eyes of the gringos" and that she was going to pay her $300 instead because "in Peru that is a lot of money."¹³⁹

Most domestic workers with whom we spoke, however, like Jamisola, believed that their written or verbal employment contracts were binding but described how their employers breached the contracts once in the United States. Workers like Jamisola also described the difficulty of negotiating improved labor conditions, once in the United States, back to the level of those promised in their contracts, recounting that employers responded to such complaints and requests by threatening dismissal and deportation.

Visa Extensions and Employment of Multiple Domestic Workers
Application for an extension of a special visa provides the U.S. government with an opportunity to review an employer's treatment of a domestic worker, yet the U.S. government grants extensions with no examination of past employer conduct.¹⁴⁰ Similarly, none of the State Department's Foreign Affairs Manual requirements for issuance of special domestic worker visas precludes an employer who breaches the terms of the mandatory employment contract from thereafter employing a series of migrant domestic workers. The State Department does not verify that an employer seeking to replace or hire an additional domestic worker has complied with the contract during employment of the original worker. Even if it comes to the State Department's attention that the employer has breached the contract, the State Department is not required to deny visa issuance for a new domestic worker. The State Department's recently issued circular diplomatic notes provide only that, "[i]f an employer seeks to replace an employee or add to his or her existing domestic staff, the . . . visa may be denied if there is reason to believe that the employer failed to fulfill his or her obligations to a former or current employee."¹⁴¹

Employers may, therefore, hire a series of domestic workers, replacing each one after she leaves abusive labor conditions. Several domestic workers described such situations. Espinoza, a Peruvian domestic worker, claimed that while employed for a European diplomat in August 1998, one of the employer's daughters said that her parents had employed six domestic workers in one year and that the last one was a Filipina who escaped while the family was on vacation.¹⁴² Gema Villanueva, an El Salvadoran domestic worker employed from August 1998 through the present by an administrative assistant for a Latin American military attach_, recounted that her employer told her that she had employed three A-3 domestic workers before her and that "she thought that they would not give me a visa because she thought she had broken the record [for the number of A-3 domestic workers employed by one person]."¹⁴³ According to a neighbor, the employer of Chávez, the Bolivian domestic worker employed by an OAS official, hired a new domestic worker three weeks after Chávez left his employ.¹⁴⁴ Chávez had filed a civil suit against her former employer alleging failure to pay minimum wage, denial of access to medical care, verbal harassment, false imprisonment, involuntary servitude, and rape by a friend of the employer. ¹⁴⁵

In contrast, while the employer of a domestic worker with a special visa may hire another domestic worker after violating the original worker's employment contract, abusive employers of other employment-based visa holders are often not so lucky. The employer of an H-2A agricultural worker who "substantially violate[s]" mandatory terms and conditions of employment and the employer of an H-1B specialty worker who "willfully" does so are not permitted to employ another such worker for two years.¹⁴⁶ In cases of particularly egregious violations, the prohibition lasts for three years.¹⁴⁷

Visa Transfer and Change of Status
The most effective recourse for migrant domestic workers in abusive employment relationships is to change employers. If the domestic worker is unable legally to change employers or if she is able to do so only in rare circumstances and with great difficulty, this critical "self-help mechanism" is effectively absent. Nonetheless, for most migrant domestic workers, the ability to change employers legally is extremely restricted or nonexistent.

If a G-5 or A-3 domestic worker leaves her job and wishes to transfer to a new qualified employer in the United States,¹⁴⁸ she must do so prior to expiration of the time period for which she was initially admitted to the United States and within "generally thirty days" after leaving her original employer.¹⁴⁹ This thirty-day "grace period" is not official State Department policy, however, but a "matter of practice-custom." ¹⁵⁰ As unofficial State Department practice, information regarding the "grace period" is not provided to G-5 or A-3 visa recipients or their employers. The World Bank and IMF even require that employment contracts between their employees and G-5 domestic workers state that "if the domestic employee's employment by the staff member is terminated for any reason, the domestic employee will not be legally permitted to remain in the United States and will be required to leave the country promptly."¹⁵¹ Similarly, the U.N. has issued an administrative instruction to its employees stating that a G-5 visa is cancelled upon a worker's "separation from service" and "[u]pon cancellation of the G-5 visa, the staff member must make arrangements for the repatriation of the household employee and provide to the United Nations Visa Committee proof of repatriation."¹⁵² Furthermore, the INS does not share this thirty-day "grace period" policy, and if a migrant domestic worker comes to the attention of the INS during this period, the INS has the discretion to initiate removal proceedings.¹⁵³ For B-1 workers, even this unofficial "grace period" is nonexistent, and it is difficult if not impossible for a B-1 domestic worker legally to change employers in the United States. ¹⁵⁴

¹²¹ In these cases, the officials are identified by their departments, agencies, or international organizations only and are distinguished by letters.

¹²² Human Rights Watch telephone interview, State Department Official B, April 27, 2000.

¹²³ INS, "Petition for a Nonimmigrant Worker," Form I-129; Human Rights Watch telephone interview, INS Official B, April 27, 2000. For example, employers petitioning to employ or train H, L, O, P, or Q nonimmigrant workers must file an I-129 petition, setting forth a job description and weekly or annual wages, with the INS to be adjudicated prior to visa issuance.

¹²⁴ Human Rights Watch telephone interview, INS Official C, April 27, 2000.

¹²⁵ Human Rights Watch telephone conversation, United States Department of State Visa Services Office employee, November 17, 1999.

¹²⁶ Human Rights Watch telephone interview, INS Official D, March 15, 2000.

¹²⁷ For example, immigration law and Department of Labor regulations establish mandatory employment conditions for H-2A temporary agricultural workers and H-1B temporary specialty-often high-technology-workers. See INA _ 212(n)(2)(A)(i), 212(n)(2)(C)(viii); 20 C.F.R. _ 501.5 (a).

¹²⁸ 9 FAM 41.31, N6.3 (August 30, 1988); 9 FAM 41.21, N 6.2 (February 9, 2000). If the potential employer of a B-1 worker is a U.S. citizen visiting rather than assigned to the United States, however, no employment contract is required. 9 FAM 41.31, N6.3-1. Also, for B-1 visas for domestic workers, the INS Operations Instructions contain virtually identical requirements. INS OI 214.2(b). See Appendix I for the required contract provisions set out in the FAM.

¹²⁹ Human Rights Watch telephone interview, State Department Official A, June 13, 2000; See Circular diplomatic note from the U.S. Mission to the U.N. to Permanent Missions and Permanent Observer Offices to the U.N., February 18, 2000; Circular diplomatic note from the Secretary of State to Their Excellencies and Messieurs and Mesdames the Chiefs of Mission, June 19, 2000, pp. 2-3; Circular diplomatic note from the Secretary of State to the Asian Development Bank, October 19, 2000, pp. 2-3. The note to the Asian Development Bank is one of approximately forty identical notes that were sent by the State Department to international organizations with offices in the United States. Human Rights Watch telephone interview, State Department Official A, June 13, 2000. See Appendix I for the circular diplomatic note provisions.

¹³⁰ 9 FAM 41.31, N6.3-2, N6.3-3 (August 30, 1988); 9 FAM 41.21, N 6.2 (February 9, 2000).

¹³¹ 9 FAM 41.21, N 6.2(c) (February 9, 2000); Human Rights Watch telephone interview, State Department Official C, March 13, 2000.

¹³² Human Rights Watch interview, State Department Official A, Washington, DC, March 1, 2000; "A Message from the Government of the United States of America to recipients of A3 and G5 visas," (no date). The brochures also advise workers to retain copies of their contracts and state that U.S. laws may provide workers with additional rights not set forth in the contracts. The brochures are available in English, French, Spanish, and Tagalog-one of the major languages spoken in the Philippines.

¹³³ In contrast, in the case of H-2A and H-1B workers, immigration laws require the Department of Labor to investigate complaints alleging employer non-compliance with conditions agreed upon in visa applications. See INA _ 212(n)(2)(A), 212(n)(2)(G)(i); 20 C.F.R. _ 501.5 (a), 501.1(c).

¹³⁴ In particular, without a copy of the contract, it would be especially difficult to prove that an employer included any of the recommended circular note provisions, as opposed to the mandatory FAM provisions.

¹³⁵ In the thirty-eight employment relationships examined involving A-3s or G-5s, all but one worker reported signing a written employment contract. Of the five B-1 employment relationships reviewed, written contracts allegedly existed in two of the relationships, might have been signed in two, and allegedly did not exist in one.

¹³⁶ Several domestic workers also stated that their employers made them sign but did not allow them to read their employment contracts.

¹³⁷ Human Rights Watch interview, Castro, Washington, DC, March 26, 2000.

¹³⁸ Human Rights Watch interview, Natalia Vásquez, an A-3 domestic worker, Washington, DC, March 26, 2000.

¹³⁹ Human Rights Watch telephone interview, Martínez, April 17, 2000.

¹⁴⁰ Human Rights Watch telephone interview, INS Officials A, C, April 27, 2000.

¹⁴¹ Circular diplomatic note from the U.S. Mission to the U.N. . . . , February 18, 2000, p. 3 (emphasis added); Circular diplomatic note from Secretary of State . . . , June 19, 2000, pp. 3-4 (emphasis added); Circular diplomatic note from the Secretary of State . . . , October 19, 2000, p. 4 (emphasis added).

¹⁴² Human Rights Watch interview, Espinoza, Washington, DC, March 20, 2000.

¹⁴³ Human Rights Watch telephone interview, Gema Villanueva, an A-3 domestic worker, April 28, 2000.

¹⁴⁴ Human Rights Watch telephone interview, Chávez' neighbor, February 24, 2000.

¹⁴⁵ First Amended Complaint, (D.D.C. April 2000) (on file with Human Rights Watch). Chávez' employer denied the allegations, and the case was settled.

¹⁴⁶ 20 C.F.R. _ 655.110(a), 655.90(b)(2); 8 U.S.C. _ 1182(n)(2)(C)(ii).

¹⁴⁷ In the case of an H-2A worker, if "multiple or repeated substantial" violations are involved, the employer will be denied labor certification for H-2A workers for up to three years. 20 C.F.R. _ 655.110(a). In the case of H-1B workers, if employer violations have resulted in the displacement of a U.S. worker, the employer also may not employ an H-1B worker for at least three years. 8 U.S.C. _ 1182(n)(2)(C)(iii).

¹⁴⁸ For the purposes of this report, "qualified employer" refers to an employer meeting the Immigration and Nationality Act requirements for employing a migrant domestic worker with a special visa, such as being a diplomat, an ambassador, a consular official, or an international organization official. A worker can change employers by transferring sponsorship of her visa, in which case the new employer reregisters her visa with the State Department, or by changing status from A-3 to G-5 or G-5 to A-3, in which case the new employer applies for a new visa for the worker. Human Rights Watch telephone interview, State Department Official B, March 17, 2000.

¹⁴⁹ Ibid. The time period for which the worker is admitted is set forth on her I-94 form-the arrival-departure record. See 22 C.F.R. _ 41.112(d)(2)(i).

¹⁵⁰ Human Rights Watch telephone interview, State Department Official B, March 17, 2000. Under current immigration law, the State Department could allow up to six months for such a transfer or change of status, after which time the out-of-status domestic worker would be inadmissible in the United States for three years. See INA _ 212(a)(9)(B)(i).

¹⁵¹ The World Bank Group Code of Conduct Regarding Employment of G-5 Domestic Workers, December 13, 1999, Article II, Sec. 12 (emphasis added); The International Monetary Fund Code of Conduct Regarding Employment of G-5 Domestic Workers, December 10, 1999, Article II, Sec. 12 (emphasis added). These documents will hereinafter be collectively referred to as WB/IMF Code of Conduct Regarding Employment of G-5 Domestic Workers.

¹⁵² "Administrative instruction: Visa status of non-United States staff members serving in the United States, members of their household and their household employees, and staff members seeking or holding permanent resident status in the United States," ST/AI/2000/19, December 18, 2000, paras. 8.1, 8.3.

¹⁵³ Human Rights Watch telephone interview, INS Official F, November 7, 2000.

¹⁵⁴ Human Rights Watch telephone interview, INS Official C, April 27, 2000. Unlike an A-3 or G-5 worker's visa, a B-1 domestic worker's visa cannot be transferred simply by re-registering the visa with the State Department because B-1 visas are not registered with the State Department. Instead, if a B-1 domestic worker wishes to change employers, she must apply to the INS to do so prior to leaving her original employer. Human Rights Watch telephone interview, INS Official F, March 12, 2001.