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 Issuance and Employment Contracts
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
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
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
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.