Public Comment on New Regulations for the Exchange Visitor Program-Summer Work Travel, RIN (1400-AC79)

By David North on May 4, 2011

My comments on the Exchange Visitor Program-Summer Work Travel Rule are made on behalf of the Center for Immigration Studies, a non-partisan, non-profit, Washington-based research organization that pays attention to the impact of immigration on American life.

I have four sets of comments:

  1. The program, because it denies summer jobs to 120,000 Americans at a time of high unemployment should be, at the very least, suspended.
  2. In future years, if the program continues at all, it should be sharply reduced in size, and should be much more carefully monitored to make sure that the incoming exchange visitors get the best possible impression of this country. The reduction in size would also open up, perhaps 100,000 jobs for young Americans.
  3. The writers of the Federal Register notice are to be praised for the honesty which with they described the horrific problems within this extremely lightly monitored program, and
  4. The specifics of the labor market protections for foreign workers offered by this proposal are sadly lacking, and need much reinforcement. I will elaborate on the first, third and fourth of these arguments.

Point 1. Most programs to advance America’s diplomatic interests are, appropriately, funded by all taxpayers. This program, if you think hard about it, is funded by taking away summer jobs – often modest jobs – from 120,000 American young people. Bear in mind that the visitors are largely funded by the income they receive from these jobs; at a time of high unemployment that means that the program is financed by denying jobs to these young citizens and greencard holders.

It’s as if we decided to fund a food program for starving North Koreans by reducing moneys spent within the U.S. on the Food Stamp program – rather than, say, rolling back the Bush tax cuts for the wealthiest two percent of the American population.

Further, while the many pages in the Federal Register speak in great detail how the proposed regulations interact with the Administrative Procedures Act, the Small Business Regulatory Enforcement Fairness Act, the Paperwork Reduction Act, and even with requirements for consultation with Indian tribal governments, there is not a word about how the program plays out in the American labor market, and how many jobs are lost to U.S. workers as a result.

For this reason the program should be suspended until such time as a more rational funding system is found, and/or unemployment drops sharply.

Point 3. I have been reading Federal Register notices for decades and I do not recall seeing a more brutally honest appraisal of the federal program in those pages. The program is, or was last year, in terrible shape as we see simply from reading this Government-written notice.

The Department admits – and should be commended for it -- that its Summer Work Travel program had sometimes been used to staff “money laundering, money mule schemes and Medicare fraud” though no details are provided.

The proposed DoS regulations for this program also speak of “. . . documented reports of aliens either knowingly engaging in or becoming hapless victims of and accessories to criminal activities . . . ” within the program.

Then there is a revealing list of occupations that DoS proposes to ban for the summer workers; the list of prohibited jobs, presumably reflecting some of the jobs held in the past by the exchange visitors, includes these:

  • jobs as modern day rickshaw drivers, (involving pedicabs and rolling chairs)
  • positions in the adult entertainment industry
  • sales jobs that require that the workers buy goods that they must sell to support themselves
  • jobs as servants in private homes
  • work as vehicle drivers where commercial licenses are needed (maybe the Teamsters weighed in on that one)
  • jobs in clinical care “that involves patient contact” and, most importantly
  • jobs “that could bring notoriety or disrepute to the Exchange Visitor Program”and thus to the State Department.

The jobs noted above are described a bit more formally on p 23185 of the Federal Register.

For more on the problems with this program I would encourage the reader to look over a blog written earlier this year on the subject.

The State Department, instead of either dropping the program completely or modifying it comprehensively, has chosen to try to make the program a bit more attractive by minor changes in its operations, which are the subject of the proposed regulations.

Point 4. The Department is to be commended by ruling that these alien summer workers must, unless they are coming from a visa-waiver country, have a guaranteed job before they arrive, which had not been the case previously. Beyond that, however, the labor market protections are flimsy.

For example, the only reference to the enforcement of the minimum wage is that employers of these workers are to inform their workers of the law, a minuscule step at best; there is no agreement, as there might be, that the Department of Labor’s minimum wage inspectors would make unannounced audits of work sites.

Further, employers are expected to “provide program participants with the approximate number of hours of paid employment per week that the employers had [previously] agreed to . . .”

Similarly, workers will be placed only with “host employers that materially comply with all . . . Occupational health and safety laws.” Note the omission of labor standards laws in this sentence. (Emphasis added in both.)

None but the most dutiful employer is going to read these regulations and pay much attention to them. These quotations suggest that the Department knows little, and cares less, about preventing the economic abuse of its summer-time charges.

If the State Department is going to continue to operate this program it should, at the very least, use some of its newly-increased program fees to pay DoL to conduct a series of work-site inspections, and then heavily publicize the DoL findings, including direct mail to employers using the program.