The Story of Q: The Greedy Search for the Most Exploitative Visa Category

By David North on June 5, 2011

It is the latest twist on an old story, the constant hunt through the intricacies of the immigration law for the best way to exploit nonimmigrant workers. As we have previously reported, the INA is chock full of obscure visa categories, most written with the desires of special interests in mind.

Today's story, which actually has a happy ending, is about one firm's efforts to turn Q visas into its own little gold mine. It is based on court and agency records.

The Q visa, according to a USCIS publication, is for "international cultural exchange programs designated by USCIS . . . for the purpose of providing practical training and employment, and to share the history, culture, and traditions of your home country with the United States."

Sounds harmless, right? But never underestimate the creativity of the entities at the margins of international migration. It is the first time I have seen a report on the misuse of the Q visa, but presumably not the last.

The would-be employer in this case is Beyond Management, Inc., an Atlanta-based firm that, to quote its website, "is a hotel management company which owns and operates several properties throughout the United States."

One can surmise, by reading the court documents, that BMI had a vision of adding a bit of international class to its hotels by employing front desk clerks dressed in their homeland's costumes, sprinkling some overseas decorations through their hotels, and all the while paying these staff members a little less than the minimum wage. This was to be arranged through the Q visa program.

But how do you, economically, recruit people overseas for this work, and how do they get a visa from the State Department when the aliens are to be paid so little?

In the two published cases involving four people, BMI avoided those problems by hiring nonimmigrants already in the U.S. on J-1 visas, so no consular interview was needed. (That you could hire someone away from a J-1 program at such low wages does not speak well for the supervision of J-1 operations, but that is another story.)

The happy part of this tale is that two sets of USCIS officials and one federal judge saw through the story, and all decided to deny the BMI applications. The first stop was the Vermont Service Center, a mail-order USCIS entity that handles many classes of petitions. The staff there denied the applications on the grounds that the cultural exchange aspect of the work was a veneer, and what the workers were really supposed to do was to staff the front desk and help in the kitchen.

BMI appealed to the DHS Administrative Appeals Office; by now there were two separate cases. According to one of the AAO decisions:

Counsel claims on appeal that although the petitioner's program participants may "perform certain duties at the reception desk of the hotel," they are not front desk clerks because they "wear international dress and name tags" and engage guests in conversations about their home countries, while any assistance they provide to guests is "incidental." However, other evidence in the record confirms that the petitioner's program participants do in fact perform the same basic job functions as "regular" hotel staff.

In the same AAO decision the adjudicator noted that while the federal minimum wage was, at that time, $1,222.67 a month, the compensation package provided was valued at only $1,155.00, of which only $600 was cash, the rest being the hotel's value for providing housing and services.

Q visa holders are supposed to be paid as well as comparable American workers, who are presumed to be paid at least the minimum wage.

Federal Judge Marvin Shoob of the U.S. District Court, Northern District of Georgia on March 24 upheld the AAO decisions, as was reported in the May 2 issue of Interpreter Releases, the immigration bar's trade paper.

Partial Secrecy. AAO, as we have noted before, has a peculiar policy on the privacy of its work. Not only the names of the aliens are eliminated from its public files, so are the names of the lawyers, corporations, expert witnesses, and adjudicators; this is not the practice of most administrative appeals panels, nor of the federal courts.

In this case the lawyers whose names are blacked out in some AAO documents were identified in the federal court files as Charles Kuck and Danielle Conley, both of Atlanta; the expert witness for the employer was Dr. Michael Sturman of Cornel. A partially blacked-out AAO document identified the aliens as Christian Marcello Sala (apparently from Argentina) and Parimal Prabhune (apparently from India.)

Were I the lawyer who had lost three times on a case that started in a federal agency (USCIS) that yearns to say yes on immigration matters, and usually does, I would want my name blacked out, too.