J-1 Visa

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The J-1 nonimmigrant visa program allows employers to hire foreign workers under the auspices of an educational and cultural exchange visitor program without testing the U.S. labor market.

I. J-1 VISA
The J-1 nonimmigrant visa allows foreign individuals to temporarily work in the United States under the auspices of an educational and cultural exchange visitor program.1 At its inception, the purpose of the J program was to promote international understanding.  Thus, the Department of State, the agency charged with maintaining foreign relations, is in charge of the program.  Even though J-1 was not designed to import foreign labor, it is used as such.  Even though the J-1 visa has become a temporary work visa affecting U.S. labor markets, the U.S. Department of Labor does not regulate the program at all.  Its role is relegated to enforcing federal wage and hour laws that may or may not apply to certain J-1 workers.  The Department of Homeland Security likewise plays a limited role, being responsible for operating the Student and Exchange Visitor Information System (SEVIS).2 The DHS’s Customs and Border Patrol oversees every admission to the U.S. at the border and other ports of entry.  Unlike most other nonimmigrant work programs, the DHS’s U.S. Citizenship and Immigration Services has virtually no part in running the J-1 program. 
 
Department of State regulations outline fourteen distinct subcategories within the J-1 Exchange Visitor Program.  They are: au pair, camp counselor, college and university students, government visitors, international visitors, physicians, professors and research scholars, high school students, short term scholars, specialists, summer work travel, teachers, interns and trainees.3 Five of these subcategories present situations where J-1 workers are most vulnerable for reasons such as short-term employment, geographic isolation, employment in private homes or in low-wage unskilled industries, or because the regulations lack any worker protections.  These five subcategories are summer work travel, camp counselors, trainees and interns, au pairs, and teachers.  Department of State data indicate that these five subcategories make up just over half of all total J-1 visas issued.4 In 2012, 313,431 individuals received J-1visas.5
 
 
 
A. Historical Context
The J-1 exchange visitor program was created in 1961.6 It was enacted during the same month as the Foreign Assistance Act and Peace Corps Act, thus joining the broader effort to improve and strengthen U.S. relations abroad.  At its inception, the primary goal of the J-1 visa was to spread information to the rest of the world by providing opportunities for foreign nationals to experience the U.S. and then use that experience in their home countries.  Initially, the U.S. Information Agency was charged with administering the program. Responsibility for administration of the J-1 visa program transferred from USIA to the State Department in 1999.  Over time the J-1 exchange visitor program expanded to include 13 different subcategories that each have their own set of rules and requirements. While the subcategories now cover a wide swath of the workforce, including both low wage concessionaires and high wage doctors, all exchange visitors have the same J-1 visa. 
 
B. Hiring Process
The Department of State Bureau of Education and Cultural Affairs (ECA) is the sub-agency that oversees the J-1 Exchange Visitor Program. ECA approves designated sponsor organizations, which are authorized to administer all aspects of a specific program.  The Department of State operates the J-1 system by delegating responsibilities to these approved sponsors that act as go-betweens between the host entity (employer) and foreign participant (worker).7 The Department of State approves a majority of the sponsors who apply.8 As of May 2013, there are approximately 1,200 sponsors designated to administer the J-1 program.9
 
Each of the J-1 subcategories has a different set of regulations and as such the specific procedures may vary.  Generally, however, sponsors make the connection between the worker and the host employer.  In some cases the designated sponsors will coordinate with foreign partners to advertise the program and recruit foreign participants.   The Department of State recently launched a user-friendly website that walks participants, sponsors, host entities, and the public through the J-1 visa scheme.10
 
1. Steps for Employers (aka "Hosts")
Employers who want to hire workers under the J-1 exchange visitor program must contract with a sponsor designated to administer the specific J-1 subcategory of interest.  For a fee, the sponsor will recruit the foreign worker and complete all the necessary immigration paperwork with the worker and the State Department.  The employer does not contact the Department of State at any time; the designated sponsor handles this. 
 
 
a) Advantages in hiring J-1 workers
There are several reasons why employers choose to hire J-1 workers. Significantly, employers do not have to pay employment taxes on J-1 workers’ wages – which can be up to 8% – because they are exempt from this requirement.11
 
 
2. Steps for Workers (aka Foreign Participants” or “Exchange Visitors”)
To obtain a J-1 visa, foreign nationals first apply to a designated sponsor, usually through a foreign recruiter or agency abroad.  The applicant will likely have to pay a fee to apply.  The sponsor will screen for eligibility based on the criteria of the specific J-1 subcategory.  The applicant must be accepted by a sponsor for a specific exchange program prior to applying for the actual J-1 visa. In order to participate in any of the J-1 subcategories, the following general requirements apply:
 
Qualify for participation through a Department of State designated sponsor
Pay all applicable government required fees
Have sufficient funds to cover travel expenses to the United States
Pay for medical insurance at the required level 
Speak English sufficiently to participate in the program
Have no intention of immigrating to the U.S. 
Agree to return home and reside there for at least two-years after the J-1 visa expires12   
Meet the additional requirements specific to each J-1 subcategory13
 
3. Steps for Designated Recruiters (aka “Sponsors”)
The State Department designates sponsors to be in charge of administering all aspects of the exchange program for a particular J-1 category. For example, the au pair category has 14 designated sponsors, whereas there are 49 sponsors who may administer the summer work travel program. Designated sponsors are central to the J-1 program, taking on the role of an official recruiter or a staffing agency. They locate, screen, and select foreign participants to be exchange visitors based on criteria listed in regulations pertaining to the specific category with which they are charged. In most cases, the sponsors then match the exchange visitors with their host employers. When the sponsor approves the foreign participant, the sponsor issues a Certificate of Eligibility for Exchange Visitor Status, Form DS-2019 to the participant. Sponsors are responsible for updating information with the Student and Exchange Visitor Information System. Sponsors have many obligations with regard to the J-1 program, specifics will depend on regulations that pertain to each subcategory.
 
4. Workers Apply for the J-1 Visa and Admission to the U.S.
After the DS-2019 is completed, the participant applies for a J-1 visa at the U.S. Consulate or embassy abroad. The participant completes the online visa application, Form DS-160 and pays the $160 processing fee. The individual applying for the visa pays the fee.14 Personal interviews at the consulate are usually required. At the interview, the J-1 applicant brings a printed out confirmation of the Form DS-160, their passport, and any supporting documents required by the specific program.  The State Department distributes anti-trafficking brochures to workers when they apply for their visas at the consular posts abroad.
 
The processing time for a J-1 visa depends on the country. Once the visa is in-hand, the individual may travel to the U.S. and present for admission at a U.S. border or port of entry  Just because an individual possesses a visa does not mean that she is admissible. The U.S. Department of Homeland Security’s Customs and Border Patrol makes that admissibility determination.
 
 
 
C. Duration of the J-1 Visa
The duration of a J-1 visa depends on the subcategory and particular exchange program’s length.19 For seasonal workers this may be as short as three weeks20 and for professionals this may be as long as five years (not including extensions).21 J-1 workers may be admitted for a “period up to 30 days before the report date or start of the approved program” but the visa’s validity may not exceed the program period plus 30 days for the purposes of travel unless an extension or change has been granted.22 After the visa expires, the worker usually must return to their home country for the two-year residency requirement before they will be allowed to return to the U.S.23
 
 
D. J-2 Visa for Family Members
J-2 visas are available for dependent family members of J-1 visa holders, including children under the age of 21 and the J-1’s spouse.24 The Department of State presumes, however, that participants in the summer work travel, camp counselor, au pair, and high school exchange programs will not be accompanied by dependents.25 The duration of a J-2 visa must not be longer than the principal’s J-1.26 Individuals with a J-2 visa are eligible to apply for employment authorization (Form I-765) from DHS, and work in the U.S. at any job they can find once that application is approved.27
 
E. Lack of Job Transferability
As with most other nonimmigrant visas that authorize work in the U.S., J-1 workers are vulnerable to the extent that their immigration status is tied to their job placement. If an individual has paid thousands of dollars in fees, the incentive to stick with an exploitative situation is strong.28 J-1 participants may usually seek a placement change with their sponsor. However, the sponsor may not provide the needed assistance.  Sponsors depend on the host employer’s business to make their profits. 
 
F. Displacement of U.S. Workers
The regulations do not set up any system to evaluate whether J-1 workers will displace U.S. workers.  Neither the Department of State, nor the sponsor, is required to conduct a labor market test, recruit U.S. workers, or circulate job offers through the interstate clearance order system, like with other temporary nonimmigrant work programs (such as under the various H programs).  Even though regulations for some subcategories may prohibit placing J-1 workers in positions instead of U.S. workers, there is no specific guidance for sponsors on how to manage or enforce this prohibition.29
  • 1. See U.S. State Department, Exchange Visitor Visas, available at http://www.travel.state.gov/visa/temp/types/types_1267.html#poe (May 2013).
  • 2. SEVIS is a computer database designed to track information about students and exchange visitors, which include workers with a J-1 visa. See 22 C.F.R. Part 62, Subpart F.
  • 3. 8 U.S.C. §101(a)(15)(J); 22 C.F.R. Part 62, Subpart B. While there are fourteen subcategories, there are thirteen sets of regulations because interns and trainees are grouped together.
  • 4. According to the data available on j1visa.state.gov, in 2012 these five subcategories together totalled 157,669 out of 297,939 all together, or 53% of the total J-1 visas issued.
  • 5. State Department, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html. This number is higher than the total number of J-1 visas hand-tallied using the State Department’s totals by subcategory, listed on the agency’s J1 website, j1visa.state.gov.
  • 6. Mutual Educational and Cultural Exchange Act, commonly known as the Fulbright–Hays Act, Public Law 87-256, as amended, 22 U.S.C. §§ 2451, et. seq. (1988).
  • 7. 22 C.F.R. §§ 62.2, 62.3(a).
  • 8. Government Accountability Office, Stronger Action Needed to Improve Oversight and Assess Risks of the Summer Work Travel and Trainee Categories of the Exchange Visitor Program, at 10 (October 2005), available at http://www.gao.gov/new.items/d06106.pdf.
  • 9. http://j1visa.state.gov/basics/facts-and-figures/.
  • 10. http://www.state.gov/r/pa/prs/ps/2011/05/164289.htm
  • 11. 26 U.S.C. § 3121(b)(19)(FICA exemption) and 26 U.S.C. § 3306(c)(19) (FUTA exemption).
  • 12. 22 C.F.R. § 62.14 and 9 FAM 41.62 N1 at 1.
  • 13. 22 C.F.R. Part 62, Subpart B.
  • 14. The U.S. will only charge a visa issuance fee if the applicant’s home country charges U.S. citizens for a similar type of visa.
  • 19. 8 C.F.R. § 214.2(j)(1)(ii) (“Regulations of the State Department published at 22 CFR part 62 give general limitations on the stay of the various classes of exchange visitors.”).
  • 20. 9 FAM 41.62 Notes, “Categories of Exchange Visitors,” at 8.
  • 21. 22 C.F.R. § 62.20(i)(1).
  • 22. 8 C.F.R. § 214.2(j)(1)(ii).
  • 23. There are exceptions to this, for example if a J-1 worker applies to change their status based on marriage to a U.S. Citizen or Lawful Permanent Resident.
  • 24. 8 C.F.R. § 214.2(j)(1)(i); 9 FAM 41.62 N3.4 Requirements for Spouse and Minor/Unmarried Children.
  • 25. Id. (“Should you receive a Form DS 2019 supporting a J-2 visa application from an individual claiming such status, contact CA/VO/F/P and ECA for guidance immediately.”)
  • 26. 8 C.F.R. § 214.2(j)(1)(ii).
  • 27. 8 C.F.R. § 214.2(j)(1)(v); 9 FAM 41.62 N7 c.
  • 28. 9 FAM 41.62, Ex. V at 2 (“If you change employment without the permission of your sponsoring agency, your status in the program may be terminated.”); available at http://exchanges.state.gov/jexchanges/j-1_visas/adjustments.html#termina... (“Participants found to be in violation of program regulations and/or sponsors’ rules may be terminated from the program. . . .[G] rounds for termination include, but are not limited to 1) failure to pursue the exchange activities for which the participant was admitted to the United States . . . . Participants who withdraw or are terminated from their exchange programs are expected to leave the United States immediately.”)
  • 29. For example, while the regulations state that the intern trainee subcategory may not “be used under any circumstances to displace American workers,” there is no mention of how such displacement would be prevented, uncovered, or penalized. 22 C.F.R. § 62.22(b)((1)(ii).
II. J-1 WORKERS IN THE U.S. – DATA

Both the State Department and the Department of Homeland Security maintain data about J-1 workers. Close to 300,000 new J-1 visas are issued each year. Some J-1 programs span more than one year, while some have a much shorter duration of just several months. The amount of individuals in “active J-1 status” at any one time fluctuates between approximately 160,000 and 220,000 depending on the time of year. The subcategory with the most participants is summer work travel, followed by high school and university students, and scholars.  J-1 workers come to the U.S. from all over the world, with most coming from European nations.  China is the largest sending country for J-1 workers, followed by Germany, United Kingdom, Brazil, and France.  Even though the U.S. government possesses detailed information on  individuals who work with a J-1 visa, including their age, gender, country of origin and the subcategory, this information is not publicly available. 

 
A. The Number of J-1 Workers in the U.S.
1. U.S. Department of Labor
The U.S. Department of Labor does not have any role in the administration of the J-1 visa program.  As such, USDOL neither collects nor maintains data regarding the number of J-1 workers present in the U.S.
 
2. U.S. Department of State
The Department of State publishes select J-1 data on their interactive J-1 visa website, including the number of sponsors and workers per subcategory, and the destination states for each subcategory.30 Statistics for J-1 visas are also found on a multi-year spreadsheet for all nonimmigrant visas issued by nationality, which is published on the general DOS website.31 The numbers for 2012 listed in each of these sources, however, do not match up. The interactive website indicates that 297,959 J-1 visas, were issued, whereas the NIV detail table shows a total of 313,431 J-1 visas.  The reason for this discrepancy is not apparent. 
 
3. U.S. Department of Homeland Security
The Department of Homeland Security (DHS) annually publishes the number of admissions of individuals with J-1 visas rather than the number of individuals.32 Each time a nonimmigrant worker enters the United States, DHS’s Customs and Border Patrol counts the entry as an admission. The numbers represent admissions, not individuals.  That is, one single individual may be counted many times over in this total count because each admission is counted. Many J-1 workers return to their home countries for holidays or vacations during the year.
 
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a) U.S. Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement (ICE) is the branch of DHS that oversees the Student and Exhchange Visitor Program (SEVIS), the computer system which tracks the whereabouts and employment of all J-1 participants.  ICE publishes SEVIS quarterly reports showing the number of individuals in active J-1 status.  During the quarter ending in March 2013, there were 180,047 active J-1 participants in the United States.  The numbers fluctuate throughout the year for example, there are fewer J-1 workers here in winter and more in the summer.
 
B. J-1 Worker Demographics
The State Department issues the most J-1 visas to workers from Europe and Asia.  In 2012, European nations account for 170,817 and Asian countries 91,940.33 The entire rest of the world received just 61,488 J-1 visas.  China is the single largest sending country for J-1 workers, with 32,400 visas issued, followed by Germany, United Kingdom, Brazil, and France. The Department of Homeland Security also publishes the nationality of every person admitted along with their visa classification. As a result of the way this data is collected and reported, however, the DHS numbers may obscure the picture of which countries send the most J-1 workers to the U.S.  To illustrate this point, take Canada - with 31,118 admissions for J-1 workers in 2011.34 That number may simply reflect that Canadian J-1 workers leave and re-enter the U.S. many times during one year. Indeed, if the individual lives near the border, it is possible that they are entering almost daily. So while the flow of J-1 workers from Canada is high, the number of individuals from Canada is unknown.  J-1 workers come from many other countries as well.  Nonimmigrant admission numbers track the largest source-countries: China, Canada, Germany, France, Mexico, United Kingdom.  DHS does not break down the nonimmigrant admissions for J-1 workers by subcategory.  
 

 
 
1. Age and Gender of J-1 Workers per Subcategory is known but not made public
The State Department and Department of Homeland Security collect information on the number of J-1 workers that are present in the U.S. at any given time, their program subcategory, nationality and other biographical information.  All of this information is listed on Form DS- 2019 and contained in the SEVIS computer database which is managed by DHS. Sponsors must input into SEVIS biographical information for all exchange visitor workers as well as where they are employed and the J visa subcategory.36 Every J-1 worker’s subcategory classification, nationality, age and gender is known to the U.S. government. Therefore, it is possible to break down the data and show, for example, the average age of interns and where they are employed, or what countries send the most SWT participants. Neither DHS nor State have chosen to make this information public. In its Yearbook of Immigration Statistics, published annually, DHS offers supplemental data tables that offer the gender and age range of selected categories.37 However, the categories are not specific to certain visas. J-1 visas are grouped together with J-2, and the entire F and M nonimmigrant visas as well.38 Therefore, that information is not useful to determine the age of gender breakdown of any of the J-1 visa categories.
 
C. J-1 Employer Demographics
Neither the Department of State nor the Department of Homeland Security publish the names of companies where J-1 workers are employed.  These agencies do possess this information, however, because sponsors must report each J-1 visa holder’s “site of activity” both the DS-2019 and SEVIS.39 The primary and any secondary locations where the J-1 workers will spend the duration of their exchange programs must be listed in full, and updated throughout their stay. While the Department of State data on their website is broken down by the U.S. state where participants are destined to work, the website has no information about the actual places of employment.
 
D. J-1 Job Characteristics
The Summer Work Travel subcategory is the largest single J-1 program, at 91,763 participants in 2012.40 Students comprise the second largest group of J-1 visa holders: high school and university students combined totaled 71,142 participants. Scholars are the third largest combined category with professor, research and short term scholars amounting to 53,987 visas issued. Interns and trainees total 32,494 participants. 
 

  • 30. The State Department’s website j1visa.state.gov publishes data for each subcategory by U.S. state of destination The numbers of visas granted per category are searchable per state via an interactive map. The data is available in list form if the search is done by category. However, while the category totals per state are listed, the total per category is not. These numbers here were calculated by hand in March 2013 based on 2012 data available on the website at that time.
  • 31. State Department, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html.
  • 32. U.S. Department of Homeland Security, Nonimmigrant Admissions (I-94 Only) by Selected Category of Admission and Region and Country of Citizenship: Fiscal Year 2011, available at http://www.dhs.gov/yearbook-immigration-statistics-2011-2.
  • 33. Department of State, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html.
  • 34. Canadian nonimmigrant workers are not required to obtain a J-1 visa prior to presenting at the border for entry. Rather, Canadians set to come as J-1 workers present at the border with the DS-2019. Therefore, Canadian J-1s are not counted in the State Department data, but are included in the DHS admissions count.
  • 36. See Department of Homeland Security, User Manual for Exchange Visitor Program Sponsor Users (RO/ARO) of SEVIS Version 6.1:Volume II Form DS-2019, p. 35 (Dec. 7, 2012) (field 13, “Exchange Visitor Category” presents drop down menu offering fifteen J visa participant subcategory options, detailed in Appendix 3).
  • 37. U.S. Department of Homeland Security, Nonimmigrant Admissions (I-94 Only) by Selected Category of Admission, Age and Gender: Fiscal Year 2011, available at http://www.dhs.gov/yearbook-immigration-statistics-2011-2.
  • 38. Id.
  • 39. See Department of Homeland Security, User Manual for Exchange Visitor Program Sponsor Users (RO/ARO) of SEVIS Version 6.1:Volume II Form DS-2019, p. 39-43 (Dec. 7, 2012).
  • 40. These totals were calculated by hand based on the subcategory per-state data listed on j1visa.state.gov. The Department of State's NIV detail table does not break down J-1 visa numbers by subcategory.
III. ENFORCEMENT OF J-1 WORKERS’ RIGHTS
J-1 workers’ rights may be enforced by the Department of State, other federal and state agencies in charge of enforcing employment laws, or by private counsel. There is a big gap in enforcement, however, because under the J-1 regulations, the Department of State does not have the authority to sanction employers. Only sponsors are regulated, and thus subject Department of State enforcement.The scheme relies on sponsors to keep tabs on the J-1 workers and ensure employers’ compliance with program regulations, which may or may not set out specific employment terms.  The core problem here is that sponsors are usually for-profit companies relying on the employers’ business – employers pay sponsors to be able to hire J-1 workers in the first place.  Sponsors may sincerely be concerned about the well being of the J-1 workers and their reputation with both the local and international communities.  Nevertheless, this concern is balanced with the relationship with employers - who pay the sponsors. Indeed, there is not much motivation for sponsors to interfere with the employment relationship at all, as their profits rely on the employer's fees.  If an employers becomes upset with the sponsor, the employer may simply move its business elsewhere.  
 
If a J-1 worker claims that there has been a violation of federal wage and hour laws, the U.S. Department of Labor may get involved.  If there is any sort of discrimination and Title VII is implicated, then the Equal Employment Opportunity Commission may enforce those rights.  State agencies customarily will have the authority to enforce any state laws that apply.  To the extent that there is an employment contract or applicable federal or state statute allowing a private lawsuit, a J-1 worker may certainly bring their own case to enforce their rights in court, just like any other U.S. worker.   
 
 
A. U.S. Department of State
Employers or third-party recruiters who violate the law do not fall within the jurisdiction of the Department of State and thus do not face any possible sanction from the agency.41 The agency does have the authority, however, to sanction or decertify sponsors who are found to have violated program rules.  Even so, the Department of State’s system for monitoring J-1 sponsors relies almost entirely on sponsor self-enforcement combined with complaint-driven investigations. The J-1 program regulations across these categories do not themselves contain any reference to affirmative efforts by the Department of State to monitor or investigate sponsors and employers. In 2005, the Government Accountability Office found that the Department of State lacked the staff to routinely conduct site visits.42 The Department of State thereafter did create a compliance office and launch a complaint database in November 2010.43
 
The Department of State may sanction any J-1 sponsor that violates or fails to comply with the regulations, commits an act of omission commission that could “have the effect of endangering the health, safety, or welfare of an exchange visitor” or otherwise undermines the foreign policy objectives or national security interests of the U.S. or brings the “Exchange Visitor Program into notoriety or disrepute.”44 Department of State may issue a written reprimand and/or corrective action plan, place the sponsor on probation, reduce the sponsor’s authorized number of exchange visitors by up to 15% or more, suspend a license, and revoke or deny a sponsor’s application for re-designation.45
 
1. Sponsors are rarely sanctioned 
From 2006 through February 2013, looking across five subcategories of J-1 visas, the Department of State only sanctioned a sponsor 19 times.46 The Department of State has never sanctioned a sponsor in the teacher category and has not sanctioned an au pair sponsor since 2006.  Only one camp counselor sponsor was sanctioned for keeping poor SEVIS records.  Six trainee and intern sponsors were sanctioned.  Five received a letter of reprimand for poor record keeping, the lightest possible sanction. The remaining sponsor was terminated in 2011 for unknown reasons. The vast majority of sponsors who apply for re-designation are approved.47
 
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 2. Recruiter (aka "Sponsor") self-enforcement
Under Department of State regulations, all J-1 sponsors regardless of subcategory must “monitor the progress and welfare of the exchange visitor” and “ensure that the activity in which the exchange visitor is engaged is consistent with that category and activity listed on the DS-2019.”48 Even so, only a few subcategories’ regulations mention how to make sure the program is running smoothly for workers. For example, the SWT category requires sponsors to personally communicate with each participant every month.49
 
Additionally, in all categories, sponsors are required to submit an annual report to the Department of State in which they are prompted to “provide a brief narrative report on program activity, difficulties encountered and their resolution. . .”50 This requirement place “the onus on sponsors to report problems involving mistreatment of J-1 participants.”51 However, sponsors have a disincentive to report employer noncompliance.   Not only could it invite unwanted sanctions or audit, but such reporting also may damage the reputation of the sponsors, employers and “the business relationship between sponsors and employers, which typically last multiple seasons.”52
 
 
B. U.S. Department of Labor
The U.S. Department of Labor is charged with enforcing two laws that may provide employment rights to J-1 workers: the Fair Labor Standards Act (FLSA) and the Occupational Safety and Health Act.  While USDOL has not played a significant role in enforcing FLSA rights of J-1 workers, the agency has, on occasion, stepped up to investigate and fine employers.  For example, in January 2010 DOL found that a McDonald’s restaurant owner violated the FLSA and required him to pay $38,000 in back wages to 34 employees, all of whom were J-1 trainees and interns.63 The problem with relying on USDOL enforcement of labor rights is that J-1 workers in several subcategories may be exempt from the FLSA.
 
C. Private Lawsuits
J-1 workers do not have the ability to file lawsuits in court against their employers or sponsor to enforce the J-1 program regulations.  Nonetheless, workers themselves may enforce their own employment and civil rights by filing a lawsuit in federal or state court as allowed by law.  As is the case with all temporary foreign workers, it is a challenge to find a lawyer willing to represent clients who are bound to return home once their work visas expire.   Some of the subcategories, such as SWT and camp counselors have such short program durations, that the money damages suffered may pale in comparison to the cost of pursuing litigation for J-1 workers who have returned home.  The problem of seeking portable justice looms large here.
 
1. Federal wage law
If J-1 workers are owed minimum or overtime wages under the Fair Labor Standards Act (FLSA), they can bring a lawsuit on behalf of themselves and all similarly situated workers.64 In a FLSA case from 2012, J-1 workers claimed minimum wage violations based on the failure to reimburse pre-employment expenses that were for the benefit of the employer.65 The employer argued that the J-1 regulations limit the remedies available to workers, and that only the sponsors are responsible because the regulations do not extend to the companies where the workers are placed.66 The district court did not agree with the employer and found that the regulations did not preclude J-1 workers from seeking damages under the FLSA. “The harm inflicted by violation of the FLSA cannot be remedied by administrative action against the sponsor organization.”67
 
a) Joint employment
A J-1 sponsor’s duties with respect to the creation and monitoring of the employment relationship between the worker and the employer in some cases may render the sponsor a joint employer with the actual employer.  However, one district court that dealt with the issue in the J-1 context decided that there was no joint employment relationship under the FLSA because the sponsor did not exercise enough management control over the workers.68
 
b) Retaliation prohibited
The FLSA contains an important anti-retaliation provision, which applies to “any person.”69 To wit, it is “unlawful for any person ... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA] . . .”70 A person is defined as any “individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.”71 Therefore, when J-1 workers complain about their FLSA rights both the employer and the sponsor would be prohibited from retaliating against them. 72
 
2. Access to counsel
Finding a lawyer may be difficult for J-1 workers due to language barriers, cultural differences, geographic isolation, and for some subcategories, the duration of their time in the U.S.  Moreover, because many J-1 workers are placed in low-wage jobs, the amount of money owed may be small relative to the cost and complication of transnational litigation.  If there are a large number of workers with the same claims, it may be possible for an attorney to pursue a collective or class action lawsuit, which may make the effort more worthwhile.
 
a) Federally-funded legal services
Federally funded legal services organizations may represent only certain classes of immigrants   In most cases, individuals with J-1 visas are not eligible.  There is an exception if the J-1 worker is a victim of domestic violence, human trafficking or another crime.
  • 41. 77 Fed. Reg. 27593, 27594 and 27604 (May 11, 2012).
  • 42. See GAO-06-106, at 10.
  • 43. Holbrook Mohr, Mike Baker, and Mitch Weiss, U.S. Fails To Tackle Student Visa Abuse, The Associated Press, December 7, 2010, available at http://www.msnbc.msn.com/id/40520265/.
  • 44. 22 C.F.R. § 62.50(a).
  • 45. 22 C.F.R. § 62.50(c)-(e).
  • 46. See Department of State, Closed Sanction Cases Covering the Period 2006 to Date, available at http://j1visa.state.gov/wp-content/uploads/2013/02/sanction-cases.pdf (May 2013).
  • 47. Government Accountability Office, Stronger Action Needed to Improve Oversight and Assess Risks of the Summer Work Travel and Trainee Categories of the Exchange Visitor Program, p. 10, (October 2005), available at http://www.gao.gov/products/GAO-06-106.
  • 48. 22 C.F.R. § 62.10(e).
  • 49. 22 C.F.R. § 62.32(j)(1).
  • 50. 22 C.F.R. § 62.15, Appendix D.
  • 51. Patricia Medige and Catherine Griebel Bowman, U.S. Anti-Trafficking Policy and the J-1 Visa Program: The State Department’s Challenge From Within, 7 Intercultural Hum. Rts. L. Rev. 103, 108 FN 16 (2012).
  • 52. Id.
  • 63. U.S. Department of Labor press release, January 21, 2010 available at http://www.dol.gov/whd/media/press/whdpressVB3.asp?pressdoc=Northeast/20....
  • 64. 29 U.S.C. § 216(b).
  • 65. Jatupornchaisri v. Wyndham, Order Denying Motion to Dismiss, Case No. 6:12-cv-59-Orl-31GJK (M.D. Fla., May 7, 2012). While this case was filed by J-1 workers who were intern/trainees, the same principle would apply to other J-1 subcategories.
  • 66. Id.
  • 67. Id.
  • 68. See, e.g., Ivanov v. Sunset Pools Management, Inc., 567 F. Supp.2d 189, 194-96 (D.D.C. 2008) (rejecting J-1 plaintiffs’ joint employer claim in FLSA overtime against State Department-designated sponsor because sponsor did not exercise management control over the SWT lifeguards).
  • 69. 29 U.S.C. § 215(a)(3).
  • 70. 29 U.S.C. § 215(a)(3).
  • 71. 29 U.S.C. § 203(a).
  • 72. See, e.g., Centeno-Bernuy v. Perry, 302 F.Supp. 2d 128, 135 (W.D.N.Y. 2003) (finding FLSA’s anti-retaliation provisions applicable to family member of employer who reported former H-2A agricultural guestworkers to INS after the workers complained about their FLSA rights).
IV. SUMMER WORK TRAVEL
Summer Work Travel (SWT), also known as Work and Travel USA, is a J-1 visa category for foreign college and university students, providing the opportunity to experience U.S. culture, travel in the U.S., and “work in jobs that require minimal training and are seasonal or temporary in order to earn funds to help defray a portion of their expenses.”73 In 2012, there were 91,763 participants in the J-1 SWT category.74
 
 

 

A. Worker (aka "Student" or "Participant") Requirements
To qualify for the program, students must be proficient in English, and enrolled full-time at an accredited post-secondary, classroom-based, academic institution physically located outside the U.S., and have successfully completed at least one semester.75 Under SWT, students may work in the U.S. for up to four months during their vacation break between academic years.76 As with the other J-1 visa categories, an applicant’s first step is to obtain approval from one of the State Department- designated sponsors.  Students submit their J-1 visa applications directly to a U.S. consulate or embassy post abroad.   In 2010 the State Department initiated a complaint intake system.  Sponsors must provide J-1 workers under the SWT category with phone numbers to complain to their sponsors and the State Department as well as a pamphlet describing their rights.
 

B. Recruiter (aka "Sponsor") Obligations

As with all the J-1 categories, State Department-designated sponsors administer nearly every aspect of the program.  Sponsors must recruit, screen and select the foreign students to participate, provide participants with orientation prior to leaving their home countries, place participants in jobs, regularly monitor the students’ participation,77  promptly inform DHS via SEVIS when there are changes with the students’ whereabouts, and confirm that host employers are meeting their program obligations too.  As of May 2012, there were 49 designated SWT program sponsors.78

1. Third parties

SWT program sponsors depend on third parties to assist in fulfilling core programmatic functions.  Approximately 960 different overseas agents and partners helped with screening the foreign participants and orientation that may be conducted outside of the U.S. in 2011.79 Domestic organizations may assist with promoting mutual understanding (i.e., providing opportunities for participants to engage in cultural activities).80 And, of course, domestic host employers provide work opportunities for the students and must pay them according to work agreement terms and applicable employment laws.  

Even though third party entities are necessary to the functioning of the J-1 SWT program, the regulations do not apply directly to them. Instead, the sponsors are responsible to conduct due diligence in vetting all third parties, sometimes obtaining written and executed agreements, and establishing internal controls to be certain that obligations are met.81

 

a) Foreign recruiters

Sponsors have a number of responsibilities with respect to foreign entities that may help with screening workers and providing orientation. Sponsors must annually review business licenses, check for pending legal actions, bankruptcies or complaints, obtain criminal background checks on all owners and officers, written references from three current business associates, a notarized copy of recent financial statements, and any advertising materials used to recruit workers. Sponsors also need to summarize each foreign partner’s experience facilitating aspects of the J-1 program.82
 

1) Recruitment materials

Sponsors must keep copies of all foreign recruitment materials in their original language together with a copy translated into English.83  The Department of State explained the rationale for this rule in the background notes accompanying the 2012 final interim rule:
 
The foreign entities’ initial outreach to potential program participants sets the stage for participants’ expectations about the Summer Work Travel Program. Sponsors must be aware of what the foreign entities are posting on web sites, communicating through social media, and distributing in printed materials to ensure the information conforms to the purpose and intent of the program and meets regulatory requirements. It is important, for example, that the cultural exchange aspects of the program are accentuated, and that students’ expectations about how much money they can earn are realistic.84
 

2) Sponsor contracts with foreign recruiters

Additionally, sponsors must obtain written and executed agreements with any foreign entity that is working with the sponsor.  These agreements must:
 
  • Outline obligations and full relationship between the parties;
  • Delineate responsibilities;
  • Include price lists for program marketed by the sponsor and itemize all costs charged to participants;
  • Affirm that the foreign entity “will not engage in, permit the use of, or otherwise cooperate or contract with other third parties . . . for the purpose of outsourcing any core programmatic functions of screening and orientation covered by the agreement;” and
  • Confirm that the foreign entity will neither pay nor provide incentives to employers in the U.S. to accept program participants for job placements.85
 
The requirement for sponsors to itemize the costs that participants must pay to participate in the SWT program went into effect in 2012.86 The State Department was concerned about the exorbitant costs that some program participants had allegedly been paying to work in minimum wage jobs.87 Indeed, the purpose of the rule is to “protect participants, sponsors, and the integrity of the program.”88 However, while recruiters are now required to reveal the amount of recruitment fees, the State Department regulatory framework does not limit the fee amounts.  
 
 

b) Domestic third party recruiters

Sponsors must take care to choose only reputable individuals or organizations who have liability insurance to assist with cultural understanding opportunities.95 If the entity is a registered business, the sponsor must make direct contact to verify the business owner and contact information for the manager, confirm that it is a viable business entity utilizing publicly available information, and obtain copies of the business license.96 Written agreements between sponsors and any U.S. partners must outline the obligations and full responsibilities of the parties and delineate the parties’ respective responsibilities.97

 

c) Employers (aka "hosts")

Sponsors have to vet all host employers to confirm they are legitimate and reputable businesses.98 The regulations require sponsors to directly contact employers to verify contact information, obtain and verify an employer’s tax identification number, copies of their business license and workers’ compensation policy, and utilize publicly available information to confirm that jobs will be at reputable business entities.99 Furthermore, sponsors must check the number of job placements available, be certain that employers have not experienced layoffs in the past 120 days and do not have workers on lockout or strike, and determine that the placement of SWT participants will not displace U.S. workers.100

 

2. Job placement

Sponsors are solely responsible for job placement.  Sponsors must confirm all job placements for SWT participants by “verifying, at a minimum, the terms and conditions of such employment and fully vetting their host employers.”101This is true both for initial jobs that are directly placed by the sponsor prior to their participants’ arrival and also for any additional or replacement jobs that participants obtain once they are in the U.S. Sponsors must vet all host employers within 72 hours.102

In changing the rules in 2012, the State Department stated that matching particular participants with specific job opportunities is a core function that sponsors may not delegate. While third party recruiters may provide “leads for potential jobs” only the sponsor may determine the “suitability of individual participants for specific jobs and make all placements.”103 Given the ancillary role that recruiters may play in job placement, however, the regulations prohibit both sponsors and recruiters from giving incentives “to employers to accept program participants for job placements with such employers.”104

 

a) Types of jobs

SWT participants may only work in jobs that are seasonal and temporary in nature and that provide opportunities for regular interaction with U.S. citizens to allow for experiencing U.S. culture.105 Employment is seasonal if the “required service is tied to a certain time of the year by an event or pattern” and additional workers are needed beyond usual levels.106 Employment is temporary if when an “employer’s need for the duties to be performed is a one-time occurrence, a peak load need, or an intermittent need.  It is the nature of the employers’ needs, not the nature of the duties that is controlling.”107  However, sponsors may not place participants with employers seeking to fill non-seasonal and non-temporary jobs with exchange visitors who have “staggered vacation schedules.”108

Sponsors need to make certain that participants have opportunities to “work alongside U.S. citizens and interact regularly with U.S. citizens to experience U.S. culture during the workday.”109 Indeed, as the State Department has indicated, “sponsors must consider the cultural component in all placement decisions.”110

Furthermore, the regulations require sponsors to use “extra caution” before matching participants in jobs “frequently associated with trafficking in persons,” listing modeling services, housekeeping, and janitorial services as examples.111 Sponsors may place participants with staffing agencies only when that agency is the employer and pays the participant, provides on-site job supervision, and effectively controls the work site.112

1) Prohibited jobs

Some specific jobs are banned. In 2012, the list of off-limits positions expanded to sixteen including positions in private homes, jobs related to clinical patient care, any position in the adult entertainment industry, jobs that require work hours at night, jobs declared hazardous to youth, jobs that are substantially commission-based, any position involved in gaming or gambling, pest control, distribution centers, traveling fairs, positions where there is another specific J category, such as camp counselors, and any position in agriculture, forestry, fishing and hunting, mining, quarrying, and oil and gas extraction, any types of construction work and any manufacturing.113

 

b) Timing of job placement and confirmation

Most participants will have a job in place prior to their travel to the U.S. Whether a sponsor must prearrange a job depends on whether the participant’s country of origin is counted among the countries in the Visa Waiver Program (VWP).  The vast majority of SWT participants are nationals of non-VWP countries who must be placed in jobs in advance of their travel to the U.S.118  

Nevertheless, sponsors oftentimes match SWT workers from VWP countries with jobs prior to their departure.  If a sponsor does not directly place a worker with a job prior to her departure, she may look for a job on her own once she arrives in the United States.119 However, the sponsor must guarantee that VWP workers receive “information that explains how to seek employment and secure lodging” in the U.S. and clearly identifies the types of jobs allowed under the SWT program rules.120 Workers notify the sponsors immediately after they find a job and they cannot actually start work until the sponsor vets the host employer, which happens within 72 hours.121 Furthermore, the sponsor must check that workers bring enough money with them to support themselves during their job search.   If the worker does not find a job within a week, the sponsor will assist with the job search. 

 

c) Changing jobs

When workers wish to change jobs, sponsors should not pose obstacles. In promulgating the 2012 rules, the State Department explained that while “sponsors are required to make reasonable efforts to find replacement jobs for participants, under certain circumstances, it would be appropriate for sponsors to end (not terminate) programs of participants for whom subsequent suitable jobs cannot reasonably be arranged.”126 The distinction between ending and terminating a participant’s program is significant because participants who end the work portion of their programs early may travel in the U.S. befor they return home, which those with terminated programs may not.127

 

3. Wages

Workers must be compensated at the higher of the applicable federal, state or local minimum wage, including overtime pay if required, or the wages and benefits equal to what is paid to similarly situated U.S. employees.128 If pay on a piece rate basis, the hourly wages still have to equal at least the higher required wage.  If the workers do not earn the required wage working on a piece rate basis, the employer must supplement earnings accordingly.129

When host employers provide housing and/ or transportation to and from work details of the arrangements must be made clear to the workers ahead of time, for example, the cost to workers and if housing and transportation are considered part of the compensation package, the market value of the benefits. All deductions from wages must be detailed in an arrangement that complies with the Fair Labor Standards Act (FLSA).130 The FLSA requires that any deductions be voluntary and not include a profit to the host employer or “any affiliated person.”131 Sponsors should inform the workers of these rights and give appropriate assistance when issues arise.132

 

4. Employer cooperation

Sponsors may place workers only with host employers that agree to do the following:

  • Make a good faith effort to provide the number of hours of paid employment per week as identified on their job offers;
  • Pay overtime when required under state and federal law;
  • If housing and transportation are provided, provide “suitable and acceptable accommodations” and “reliable, affordable and convenient transportation;” 
  • Notify sponsors promptly when participants arrive and begin work, when there are any changes in the job placement, when participants are not meeting the job requirements, and when participants leave their placements early; and
  • Contact sponsors immediately if there is an emergency involving a participant or any issue with health, safety or welfare.133

There are no requirements in addition to agreeing to follow the rules. While the SWT program integrity rests on host employers’ paying their employees in accordance with the law, the State Department does not have jurisdiction to regulate them.134 Therefore, the responsibility is on sponsors “to work only with those employers who would voluntarily commit to comply” with these requirements.135 Indeed, in 2012 the State Department explained that sponsors must ensure that host employers fairly compensate participants for their work.”136

 

a) Sponsor oversight of host employer cooperation

Sponsors are required to, at minimum, have monthly personal contact with participants.137 In order to confirm hat participants are working sufficient hours, for example, the State Department offers the following guidance:

Sponsors should avail themselves of the monthly contact with participants to inquire about their job satisfaction and financial state.  If conditions are such that participants simply are not earning enough money to cover their basic expenses, it is incumbent upon the sponsors to assist them in finding new or additional jobs.138

Moreover, the regulations further instruct sponsors to establish internal controls to see that employers comply with their obligations.139 With regard to participant compensation, State Department instructs as follows:

 
If a sponsor has reason to suspect that a participant is not being compensated in accordance with Federal, State or local law, the sponsor must contact the appropriate authorities, including, but not limited to the U.S. Department of Labor’s Wage and Hour Division.140
 

b) Form DS-7007 in lieu of contract

Generally, SWT workers do not have a written employment contract and are employees at will.141 Nevertheless, sponsors are required to inform participants about the terms and conditions of the host employer’s job offer.  As the State Department stated in 2012, transparency is needed to “ensure that the participants’ expectations are in line with the jobs and conditions that they will encounter” at the job placement site.142 To streamline this process for sponsors State Department is developing a new Summer Work Travel Program Job Placement Form which will be called “Form DS–7007” that will “capture the information necessary for sponsors to demonstrate that they have fully vetted potential jobs” including the name and address of the employer, hourly wage, benefits, range of hours to be worked per week, whether the employer has arranged housing, and if so, its cost to the participant.  The State Department has been reviewing comments on the Form’s design.  Until it is finalized and adopted, State Department is encouraging sponsors to “voluntarily begin using forms similar to the Form DS–7007 for informing participants about the details of their vetted jobs.”143

 

5. Cultural exchange

Participants in SWT must have opportunities to “engage in cultural events outside of work.”144 The State Department has acknowledged that until very recently “some sponsors, participants, and host employers lost sight of the center cultural exchange focus.”145 Indeed, “solely work-based cultural exposure is insufficient.”146 Sponsors are responsible for planning activities that provide exposure to U.S. culture and may delegate this core program function to domestic third party entities, as long as they are vetted.147 Two examples of ways the cultural exchange requriement may be met include excursions to national parks, historical sites, major cities and scenic areas, and attendance at community events.148

 

6. Reporting requirements

Sponsors have several reporting requirements. Twice a year, sponsors submit to the Department of State a report of all placements, including the workers’ names, SEVIS identification numbers, nationalities, and all their host employers.149 Annually, sponsors submit the participant price list, itemizing breakdowns of the costs that workers must pay to both foreign agents and sponsors to participate in SWT.150 Sponsors are required to continually maintain their list of foreign partners on the Foreign Entity Report whenever there is updated information.151 If a sponsor cancels contractual arrangements with an entity listed in the Report, it must disclose the reason.152

 

C. Genesis of the 2012 SWT Rules

In 2010, there was a push for a thorough review of SWT from high-level government officials.  This attention followed media reports of J-1 workers being exploited on the job.153 While the resulting regulations passed in 2011 strengthened protections for workers, many argued the 2011 regulatory changes did not go far enough.  Therefore, the Department of State again revised the SWT rules with an interim final regulation that took effect in large part in May 2012, and completely by November 2012.  While worker advocates agree that the new SWT rules improved protections for workers, some economists argue they did not go far enough.

 
  • 73. 22 C.F.R. § 62.32(b).
  • 74. http://j1visa.state.gov/basics/facts-and-figures/
  • 75. 22 C.F.R. § 62.32(d)(2),(4).
  • 76. 22 C.F.R. § 62.32(c).
  • 77. 22 C.F.R. §§ 62.10, 62.32(h).
  • 78. 77 Fed. Reg. 27593, 27608 (May 11, 2012).
  • 79. Id.; 22 C.F.R. § 62.32(l)(1).
  • 80. 22 C.F.R. § 62.32(l)(2).
  • 81. 22 C.F.R. § 62.32(k)-(n).
  • 82. 22 C.F.R. § 62.32(m).
  • 83. 22 C.F.R. § 62.32(m)(6) (emphasis added).
  • 84. 77 Fed. Reg. 27593, at 27603 (May 11, 2012).
  • 85. 22 C.F.R. § 62.32(l)(1)(i)-(v).
  • 86. 22 C.F.R. § 62.32(l)(1)(iii).
  • 87. 77 Fed. Reg. 27593, at 27604 (May 11, 2012).
  • 88. Id.
  • 95. 22 C.F.R. § 62.32(n)(1).
  • 96. 22 C.F.R. § 62.32(n)(2)(i)-(iii).
  • 97. 22 C.F.R. § 62.32(l)(2).
  • 98. 22 C.F.R. § 62.32(n).
  • 99. 22 C.F.R. § 62.32(n)(2).
  • 100. 22 C.F.R. § 62.32(n)(3).
  • 101. 22 C.F.R. § 62.32(g)(2).
  • 102. Id.
  • 103. 77 Fed. Reg. 27593, at 27600 (May 11, 2012).
  • 104. 22 C.F.R. § 62.32(g)(1).
  • 105. 22 C.F.R. § 62.32(g)(4)
  • 106. 22 C.F.R. § 62.32(b).
  • 107. Id.
  • 108. 22 C.F.R. § 62.32 (g)(7).
  • 109. 22 C.F.R. § 62.32(f)(1).
  • 110. 77 Fed. Reg. 27593, at 27597.
  • 111. 22 C.F.R. § 62.32(g)(8)
  • 112. 22 C.F.R. § 62.32(g)(6).
  • 113. 22 C.F.R. § 62.32(h). See http://www.bls.gov/iag/tgs/iag_index_naics.htm for details of the North American Industry Classification System occupational category industry sectors. The final category was effective November 1, 2012.
  • 118. U.S. Department of State, Interim Final Rule, “Exchange Visitor Program Summer Work Travel,” April 26, 2011, at 23179, available at http://exchanges.state.gov/media/office-of-private-sector-exchanges/pdfs... Department_frdoc_0001-1491-1-.pdf.
  • 119. 22 C.F.R. § 62.32(g)(11).
  • 120. 22 C.F.R. § 62.32(g)(11)(i).
  • 121. 22 C.F.R. § 62.32(g)(11)(iv)-(v).
  • 126. 77 Fed. Reg. 27594, at 27600 (May 11, 2012).
  • 127. Id.
  • 128. 22 C.F.R. § 62.32(i)(1).
  • 129. 22 C.F.R. § 62.32(i)(2)(ii).
  • 130. 22 C.F.R. § 62.32(g)(9)(ii).
  • 131. 29 C.F.R. §§ 531.30, 531.3(b)
  • 132. 22 C.F.R. § 62.32(3).
  • 133. 22 C.F.R. § 62.32(o)(1)-(5).
  • 134. 77 Fed. Reg. 27493, at 27604.
  • 135. Id.
  • 136. 77 Fed. Reg. 27593, at 27602.
  • 137. 22 C.F.R. § 62.32(j)(1).
  • 138. Id.
  • 139. 22 C.F.R. § 62.32(k).
  • 140. 77 Fed. Reg. 27593, at 27602.
  • 141. 77 Fed. Reg. 27593, at 27599.
  • 142. Id.
  • 143. Id.
  • 144. 22 C.F.R. § 62.32(f).
  • 145. 77 Fed. Reg. 27593, at 27597.
  • 146. Id.
  • 147. 22 C.F.R. § 62.32(f)(2), (l)(2).
  • 148. 77 Fed. Reg. 27593, at 27597.
  • 149. 22 C.F.R. § 62.32(p)(1).
  • 150. 22 C.F.R. § 62.32(p)(3).
  • 151. 22 C.F.R. § 62.32(p)(2).
  • 152. Id.
  • 153. Holbrook Mohr, Clinton Orders Review of Visa Program, Associated Press (Dec. 5, 2011), available at http://www.boston.com/news/education/higher/articles/2011/12/05/apnewsbr...
V. CAMP COUNSELORS
The J-1 Exchange Visitor Program has a subcategory designated for camp counselors. Participants must be at least 18 years old, be a college student or youth worker, teacher or possess special skills.  The maximum duration of employment is four months.  Very little information exists on the camp counselor program.  In 2012, 18,130 camp counselors came to the U.S. with J-1 visa.   The states with the most J-1 camp counselors were New York, Pennsylvania, Maine, Massachusetts and California.   With the exception of California and Wisconsin, the top ten states for camp counselors were all in the Eastern U.S.
 
 
 
A. Recruiter (aka "Sponsor") Obligations
The State Department has designated 24 sponsors to place camp counselors in jobs throughout the U.S.  All workers must be interviewed and placed prior to their arrival at summer camps that are accredited, affiliated with a nationally recognized nonprofit organization, or a member of the American Camping Association, or inspected and approved by the sponsor.163 Neither sponsors nor employers have to meet any labor market tests before hiring foreign camp counselors.  Sponsors should provide orientation to the counselors before they arrive.  This should include an explanation of duties and responsibilities as a camp counselor, any contractual obligations, and amount of compensation.164
 
B. Employment Terms
With respect to wages and working conditions, J-1 visa counselors must receive “pay and benefits commensurate” with U.S. workers at the camp.165 Moreover, J-1 workers should not be employed as administrative personnel, cooks, or in unskilled jobs like dishwashers or janitors.166 While some employers may provide camp counselors with a work agreement or employment contract, it is not required by the regulations.  State or federal worker protection laws may apply.  Most, however, are exempt from the basic wage and hour protections established in the Fair Labor Standards Act (FLSA). 
 
 
C. Little-Known Camp Counselors Vulnerable to Abuse
Camp counselors appear to be the least regulated and the least studied of all the J-1 subcategories.  The fact that there have not been many reported cases of camp counselor abuse does not mean that problems do not exist.  Several advocates offer stories of J-1 camp counselors performing solely non-youth related tasks, such as working as janitors and in food service, and working up to 80 hours per week for a fixed salary of just a few thousand dollars for the summer.169 Because government studies and advocacy reports are either nonexistent or hard to find, examining the extent of labor abuse in this program is uncharted territory.  This is troubling as there have been reports that some J-1 camp counselors have been identified as potential victims of human trafficking.170 Rural geographic isolation, no telephones in the camp, lack of knowledge about employment rights, and the relatively short time on the job all contribute to camp counselors’ acute vulnerability here.
  • 163. 22 C.F.R. § 62.30(e).
  • 164. 22 C.F.R. § 62.30(d).
  • 165. 22 C.F.R. § 62.30(f).
  • 166. 22 C.F.R. § 62.30(a). The regulations mention that “some non-counseling chores are an essential part of camp life for all counselors,” but provide no clarity on the extent such duties would be allowed.
  • 169. Interview with advocate in Washington D.C. (March 2013).
  • 170. Interview with Christa Stewart, Coordinator NYS Human Trafficking and Unaccompanied Children’s Program, Bureau of Refugee & Immigrant Assistance/OTDA (April 2013).
VI. TRAINEES AND INTERNS

The J-1 subcategory for trainees and interns is intended to develop skills in their specific occupational field through participation in structured work-based training and internship programs “and to improve participants’ knowledge of American techniques, methodologies, and technology.”171 Furthermore, the program is supposed to enhance both the foreign workers’ understanding of American society and their Americans’ knowledge of foreign cultures “through an open interchange of ideas.”172 As with every J-1 visa subcategory, the idea is for participants to return home and share their experiences.173 In 2012, there were 9,118 J-1 trainees and 23,376 interns.174   

 
 
A. Trainee and Intern Requirements
Trainees and interns must speak English and have the financial wherewithal to support themselves for their entire stay in the U.S.175 To qualify as a trainee, workers must either have a degree or “professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in their occupational field acquired outside the United States or five years of work experience in their occupational field acquired outside the United States.”176 Interns must be “currently enrolled full-time and pursuing studies in their advanced chosen career field at a degree- or certificate-granting post-secondary academic institution outside the United States or graduated from such an institution no more than 12 months prior to their exchange visitor program begin date.”177
 
1. Distinguishing Trainees and Interns
Even though trainees and interns are counted as two distinct groups, the same set of J-1 program regulations apply to both.178 The two programs have slight differences. For example, J-1 trainees possess a post-secondary degree while interns are currently enrolled students.  J-1 visas for trainees are generally valid for up to 18 months, while J-1 intern visas are valid for up to 12 months.179    
 
 
B. Recruiter (aka "Sponsor") Obligations
The Department of State has authorized 89 trainee sponsors and 75 intern sponsors.180 Many of these sponsors have been designated to place both trainees and interns. Sponsors are charged with monitoring all aspects of the program, including the selection, orientation and placement.181 Sponsors conduct site visits of small first-time employers to determine whether they are “sufficiently educated on the goals, objectives, and regulations” of the program.182 Sponsors are required to periodically evaluate trainees and interns, and confirm that they are working full-time and receiving necessary training and guidance.183
 
1. Job placement
Upon acceptance by the sponsor, trainees and interns are matched with an employer.  The program is documented in an individualized Training/Internship Placement Plan (T/IPP), Form DS – 7002, prior to the sponsor’s issuance of the Form DS – 7002.184 The T/IPP details the internship or training location, whether there will be phases or rotations through different departments, specific job duties, skills to be learned, and the amount and manner of compensation.  The T/IPP is completed by both the sponsor and the employer, and then signed by the sponsor, employer and trainee or intern.  Once both the T/IPP and Form DS- 20-19 have been issued, the trainee or intern applies for the J-1 visa.  The details of each job placement are thus set prior to departure for the U.S.
 
a) Types of jobs
The ten occupations eligible for J-1 training and internships cover almost every profession.185
 
Agriculture, forestry, and fishing
Arts and culture
Construction and building trades

Education, social sciences, library science, counseling and social services
Health related occupations 
Hospitality and tourism 
Information media and communications
Management, business, commerce and finance
Public administration and law
Sciences, engineering, architecture, mathematics, and industrial occupations 
 
Trainees and interns are specifically barred from working in jobs that involve child or elder care, any position in which the duties involve more than 20% clerical work, any clinical or medical work, or any position that could put the Department of State into “notoriety or disrepute.”186 Additionally, J-1 training and internship programs “must not be used as substitutes for ordinary employment or work purposes; nor may they be used under any circumstances to displace American workers.”187 In that vein, sponsors may not place trainees and interns in “unskilled or casual labor.”188 The Department of State published a list of 49 occupations that are prohibited, among them: hotel and motel cleaners, cashiers, groundskeepers, janitors, dining room attendants, receptionists, assemblers, and short order cooks.189   
 
 
b) Displacing U.S. workers
The J-1 regulations clearly prohibit placing trainees and interns in positions instead of U.S. workers.197 However, no mechanism is set up to ensure compliance with this prohibition, other than to simply not place interns and trainees in any of the forty-nine unskilled occupations.198 The Department of Homeland Security even reported that dairies in Florida were “exploiting the J-1 trainees for cheap labor and in most cases were not concerned with actually training them beyond what was necessary to perform their work.”199
 
2. Vetting third-party recruiters and employers
As with other J-1 subcategories, the functioning of the trainee and intern program relies on both domestic and foreign third parties to recruit and hire the J-1 workers.  Yet, the Department of State does not directly regulate them.  Instead sponsors are trusted to make sure rules are followed.200 Sponsors must not only vet third-party recruiters and employers but also enter into written and signed contracts with any entity acting on its behalf.201 Any failure by a third party to comply with the regulations is imputed to the sponsor.202 The Department of State may sanction the sponsors for a third-party’s noncompliance with program rules.  But it is not clear that this has ever happened. 
 
a) Employers (aka "host organizations")
Sponsors must “adequately screen all potential host organizations” by obtaining the employer’s tax identification number and verifying telephone numbers, address, and professional activities, and worker’s compensation insurance.203 Sponsors must then make sure that host organizations do a number of things.204   
 
Verify that all placements are appropriate and consistent with the objectives outlined in their T/IPPs
Notify sponsors about any concerns about, deviations from or changes in the training or intern program  
Certify that any training and internship programs in the field of agriculture comply with both the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act205
Obey all safety and health laws
Adhere to State Department regulations 
 
Because these regulations are not directly applicable to the host organization, the remedy for any violations is the State Department sanctioning or decertifying the sponsor.
 
b) Foreign recruiters
If a sponsor uses a foreign third party to recruit workers, it must acertain whether the entity is legitimate “within the context of their home country environment.”206 Written agreements with foreign recruiters must indicate that they are trained in all aspects of the program and include their “annually updated price lists” of costs to the participants.207
 
D. Trainees, interns and the Fair Labor Standards Act
The fact that an individual works on a J-1 intern or trainee visa does not preclude treatment as an employee under the Fair Labor Standards Act (FLSA). Internships and training programs in the for-profit private sector almost always amount to employment under the FLSA and therefore must be paid according to its minimum wage and overtime provisions.  Under the FLSA, an “employee” is “any individual employed by an employer.”208 “Employ” means “suffer or permit to work.”209  Therefore, all individuals who are “suffered or permitted” to work must be compensated for the services they provide for their employer.  This definition is very broad.  
 
 
  • 171. 22 C.F.R. § 62.22(b)(1)(i).
  • 172. Id.
  • 173. Id.
  • 174. Department of State, available at http://j1visa.state.gov/basics/facts-and-figures/ (May 2013).
  • 175. 22 C.F.R. § 62.22(d)(1), (e)(2).
  • 176. 22 C.F.R. § 62.22(d)(2)
  • 177. 22 C.F.R § 62.22(d)(3).
  • 178. 22 C.F.R. § 62.22.
  • 179. 22 C.F.R. § 62.22(k). Foreign nationals who participate in an agriculture or hospitality and tourism training program only are issued visas for 12 months.
  • 180. State Department, http://j1visa.state.gov/basics/facts-and-figures/
  • 181. 22 C.F.R. § 62.22(f).
  • 182. 22 C.F.R. § 62.22(g)(4), (f)((1)(v).
  • 183. 22 C.F.R. § 62.22(l).
  • 184. 22 C.F.R. § 62.2(6).
  • 185. 22 C.F.R. § 62.22(c)(2).
  • 186. 22 C.F.R. § 62.22(j).
  • 187. 22 C.F.R. § 62.22(b)(2).
  • 188. 22 C.F.R. § 62.22(b)(1)(ii).
  • 189. 22 C.F.R. Part 62, Appendix E.
  • 197. 22 C.F.R. 62.22(b)((1)(ii) (Intern and trainee programs may not “be used under any circumstances to displace American workers.”).
  • 198. GAO-06-106, at 24.
  • 199. Id.
  • 200. 22 C.F.R. § 62.22(g)(1)-(3).
  • 201. 22 C.F.R. § 62.22(g)(1).
  • 202. Id.
  • 203. 22 C.F.R. § 62.22(g)(3).
  • 204. 22 C.F.R. §§ 62.2 (definition of third party) and 62.22(g).
  • 205. 22 C.F.R. § 62.22(f)(2)(vi).
  • 206. 22 C.F.R. § 62.22(g)(2).
  • 207. Id.
  • 208. 29 U.S.C. § 203(e)(1).
  • 209. 29 U.S.C. § 203(g).
VII. AU PAIRS

The J-1 nonimmigrant visa program has a specific subcategory for au pairs.214 Au pairs live with host families and provide in-home childcare.  J-1 visas for au pairs are initially valid for one year, and extensions are usually available. As with other J-1 visas, private sponsor organizations are designated by the State Department to administer all aspects of the program: au pairs and host families are recruited, selected, matched and trained by sponsors.  In 2012, 13,789 au pairs worked in the U.S. under the J-1 program.  The majority of au pairs were placed in just six states.  Nearly half of all au pairs in the U.S. work in either the New York or DC metro regional areas.

 
 
A. Au Pair Requirements
Individuals between the ages of 18 and 26 may be an au pair if they speak English proficiently, are physically capable of taking care of children, and successfully pass a background criminal check and personality profile.215 Once selected, the sponsor matches an au pair with a host family. 
 
B. Employer (aka "Host Family") Requirements
A family that wants to employ an au pair contacts a designated sponsor.  Adults in the host family's household must be U.S. citizens or legal permanent residents, be fluent in English, pass a background investigation and possess adequate financial resources to pay their au pairs.216  Once approved by the sponsor, the host family pays a fee to the sponsor, usually in the range of $7,000-$8,000.217 The sponsor facilitates the match between the host family and the au pair, and handles all the logistics for the au pair’s immigration status, training, and travel to the U.S.   
 
C. Employment Terms
Au pairs may work up to 10 hours per day but no more than 45 hours per week.218 The host family provides the au pair with a private bedroom and all meals free of charge, and pays a cash stipend per week for childcare work.  The stipend amount is set by the Department of Labor utilizing a formula based on the federal minimum wage of 45 hours or work per week, accounting for the cost of room and board. In 2013 the weekly stipend is $195.95.  The amount is the same regardless of the number of children.  Au pairs must be allowed one and a half days off per week, a full weekend off each month, and two weeks paid vacation.219  In addition, the host family pays up to $500 towards classes at a post-secondary school; au pairs must enroll in at least 6 semester hours during their stay.220
 
 
 
D. Au Pairs and the Fair Labor Standards Act
J-1 au pair program regulations explicitly state that payment must be in accord with the Fair Labor Standards Act (FLSA), the federal law covering minimum and overtime wages.  Au pairs must be compensated at “a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor (USDOL).”221  The USDOL may enforce the FLSA with respect to any employer, including host families.  Under the FLSA, au pair workers may be able to sue their host family employers in federal court when their rights are violated.222
 
The J-1 program regulations do not contemplate any direct role for the Department of State in monitoring compliance with the FLSA.  Rather, sponsors are required to file an annual report with the Department of State including “a summation of all complaints regarding host family or au pair participation in the program, specifying the nature of the complaint, its resolution, and whether any unresolved complaints are outstanding.”223 If documented evidence shows that a sponsor fails to “enforce and monitor host family’s compliance with the stipend and hours requirements set forth in [the wages and hours provisions] of this section,” the Department of State may sanction a sponsor and revoke their program designation.224   
 
1. Wages and hours
Live-in domestic workers are exempt from federal overtime requirements.225 Even so, under the FLSA domestic workers who reside in the household where they work are entitled to the same minimum wage as employees who work by day.226 USDOL has determined that the weekly stipend of $195.95 for 45 hours of work per week complies with the FLSA, considering the cost of providing room and board provided by the employer. 
 
2. Counting the hours worked
The FLSA regulations do not require the employer to keep track of the number of actual hours worked by the au pair.  Rather, the host family just needs to keep “a copy of the agreement and indicate that the employee's work time generally coincides with the agreement.”227 But, if “there is a significant deviation from the initial agreement, a separate record should be kept for that period or a new agreement should be reached that reflects the actual facts.”228
 
The amount of sleeping time, mealtime and other periods of complete freedom from all duties is generally not included as time worked. However, for periods of free time to be excluded from hours worked, the periods must be of sufficient duration to enable the employee to make effective use of the time.  If the sleeping time, meal periods or other periods of free time are interrupted by work duties, the entire on-call time must be counted as hours worked.229
 
 
 
  • 214. Au pair means "at the par" or "on par" in French.
  • 215. 22 C.F.R. § 62.31(d).
  • 216. 22 C.F.R. § 62.31(h).
  • 217. See, e.g., Au Pair in America’s fees at www.aupairinamerica.com and Cultural Care Au Pair’s fees at www.culturalcareaupair.com (last visited Feb. 2013).
  • 218. 22 C.F.R. § 62.31(j).
  • 219. 22 C.F.R. § 62.31(j)(3)-(4).
  • 220. 22 C.F.R. § 62.31(k)(1).
  • 221. 22 C.F.R. § 62.31(j).
  • 222. 29 U.S.C. § 216(b).
  • 223. 22 C.F.R. § 62.31(m)(1).
  • 224. 22 C.F.R. § 62.31(n)(3).
  • 225. 29 U.S.C. § 213(b)(21).
  • 226. 29 C.F.R. § 552.102(a).
  • 227. 29 C.F.R. § 552.102(b).
  • 228. Id.
  • 229. 29 C.F.R. § 785.23.
VIII. TEACHERS
The purpose of the J-1 visa for teachers is “to promote the interchange of American and foreign teachers in public and private schools and the enhancement of mutual understanding between people of the United States and other countries.”237  The J-1 visa provides foreign teachers opportunities to teach full time in primary and secondary schools and to participate actively in cross-cultural activities with Americans in schools and communities, and to return home ultimately to share their experiences and their increased knowledge of the United States. Such exchanges enable visitors to understand better American culture, society, and teaching practices at the primary and secondary levels, and enhance American knowledge of foreign cultures, customs, and teaching approaches.238
 
J-1 visas for teachers may be valid for up to three years.239 In 2012, 1,493 foreign teachers came to the U.S. under the J-1 Exchange Visitor Program.240 The top states for J-1 teachers are North Carolina and California.  Advocates report that suffered significant labor exploitation, including paying thousands of dollars in recruitment fees, having their immigration documents confiscated, living in substandard housing, etc.
 
 
 
A. Teacher Requirements
In addition to the general requirements for participation in the J-1 program, foreign teachers must be authorized as primary or secondary teachers in their home country, intend to teach full-time at a U.S. primary or secondary school, meet all standards of the state in which they will teach, and have at least three years experience teaching or related professional experience, and possess good reputation and character.241 A teacher must have accepted an offer of employment prior to applying for the actual J-1 visa.  As with other subcategories, after the visa expires, foreign teachers must return home to satisfy a two-year residency requirement, unless they qualify for an exception.  
 
B. Recruiters (aka "Sponsors")
In 2012 the J-1 teacher subcategory had sixty-one designated sponsors.242 Many of these sponsors are state education departments or local school boards.  To qualify as a sponsor for the teacher category, organizations must have at least five exchange visitors per calendar year who are enrolled in programs that last at least three weeks.243 Sponsors are responsible for screening and selecting the foreign teachers, placing the teachers with schools, and monitoring their stay in the U.S.  In the teacher subcategory, many of the designated sponsors directly employed J-1 teachers. 
 
C. Employment Terms
Before the DS-2019 is issued, the teacher must have received and accepted a written offer for a job.244 Before the program begins, the sponsor must provide information on the length and location(s) of the program.  The written disclosure must include the teaching requirements and related professional obligations, the compensation, if any, and any other financial arrangements.245 The teacher is only allowed to teach at the school listed on his or her Form DS-2019.246
 
1. Wages and working conditions
The regulations suggest the possibility that J-1 teachers are sometimes not compensated for their work.247 However, it is clear that the position must “be in compliance with any applicable collective bargaining agreement, where one exists.”248 If there is no union, however, there are no wage requirements.  Schools do not have to pay J-1 teachers the prevailing wage, let alone the minimum wage.  For example, one Florida district paid J-1 teachers a stipend of $5,000 for the first semester before the teachers were in charge of their own classrooms.249
 
D. Third-Party Recruiters and Employer
No regulations pertain to the relationship between sponsors and foreign recruiters or host employers.  Employers must comply with the terms of any applicable collective bargaining agreement, if one exists.250 Employers also must monitor the J-1 teacher’s performance and involve them in school and community activities.  The teacher regulations mention no other obligations.  

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