Stanley S. Colvin
Office of Exchange Coordination and Designation
Bureau of Educational and Cultural Affairs
Department of State
301 Fourth Street, SW, Room 734
Washington, DC 20547
Dear Mr. Colvin:
I am writing in response to Public Notice 5319, regarding the Department's intention to investigate the possible adoption of a pilot program to enable foreign university students to work and travel in the United States for up to 12 months.
The Department should proceed very cautiously, if at all, in establishing such a program. While exchange programs in general are a valuable and necessary form of public diplomacy, those exchange programs involving employment have a very mixed track record, and currently the regulation and oversight of these programs is inadequate to ensure that they will not result in the exploitation of participants, that they do not contribute to illegal immigration, that they do not present a national security vulnerability, and that they will not adversely affect employment opportunities for young people in this country.
Inadequate Regulations and Oversight. The Office of Exchange Coordination and Designation has neither the resources nor the regulatory tools to effectively run the programs. Meanwhile the size of the programs have grown dramatically in recent years, from 205,000 exchange visas issued in 1995 to 300,000 in 2001. Issuances dropped after 2001, but climbed back to 275,000 in 2005. Adding to the workload of this office without a dramatic influx of funding and training is simply asking for more trouble, and risks undermining public support for exchange programs in general.
Many of the problems with the employment-related exchange visitor programs have been well documented in government audits and media accounts. The most recent Government Accountability Office report on the subject stated, State has not exerted sufficient management oversight of the Summer Work Travel and the Trainee programs to guard against abuse of the programs and has been slow to address program deficiencies. (Stronger Action Needed to Improve Oversight and Assess Risks of the Summer Work Travel and Trainee Categories of the Exchange Visitor Program, GAO-06-106, October, 2005). The report went on to list a number of problems, including infrequent site visits to verify that exchange programs and sponsors are adhering to the program's purposes and rules, vague or overly general regulations, unsatisfactory record-keeping, and feeble enforcement tools.
In the absence of sufficient resources to oversee the programs, the State Department has in effect abdicated the oversight of many exchange programs to the program sponsors, many of whom have a significant financial stake in the programs. Some sponsors function as traditional non-profit exchange organizations; others function more like for-profit employment agencies, earning large fees by allowing third party host organizations to participate under the umbrella of their sponsorship authority.
Though under the statute the sponsors are responsible for making sure the third party hosts abide by the program rules, in practice, there has been little incentive for them to pay much attention. This lack of oversight can have negative results for the participants. Sometimes the training provided is sub-standard or non-existent, with participants relegated to flipping burgers instead of receiving management training (as happened when a Philadelphia-area Wendy's sponsored Trainees several years ago). In some cases, participants have been treated badly, receiving little net pay, or by being forced to live in sub-standard housing, as was the case when a Vermont mountain resort hosted foreign exchange visitors as chambermaids and bar tenders several years ago.
One authorized sponsoring agency, the Cultural Exchange Network, or CENET, recently settled out of court in a law suit in Pennsylvania involving electricians who were brought from Eastern Europe under the auspices of a Trainee program, but were actually employed at below-market rates doing routine electrical work for large contracting companies. CENET sought to avoid liability for one electrician's serious on-the-job injuries that were attributed to the electrician's poor English skills (his language certification was forged). Sponsors typically charge third parties $800 or more per visitor, and can collect hundreds of thousands of dollars per year in these fees. The third party hosts have in some cases leased out the foreign trainees, collecting fees of hundreds of thousands of dollars a week. Some sponsors operate lucrative side businesses related to the exchange programs, such car leasing companies and insurance brokers. (See Report to the Nationals Education Association on Trends in Foreign Teacher Recruitment, by Randy Barber, June, 2003).
Even when the State Department decides to act on a problem that is brought to its attention, its experience has been that the sanctions provided in the law are difficult to enforce, and have been challenged in local courts. According to the GAO report, State is working on revising these laws, but the process has been very slow.
Exchange Visitor Compliance with Immigration Laws is a Problem. Data from a variety of sources indicate that exchange visitors may have a high propensity to violate the terms of their non-immigrant visa and remain illegally in the United States. The exchange visitor visa also is used as a springboard to legal permanent status, which is legal, although clearly not the intent of the program. The GAO auditors found that the departure of only about 36% of recent exchange visitors could be confirmed by DHS, while 24% of recent visitors were possible overstayers, and the status of 40% could not be determined. Validation studies completed by U.S. consulates abroad have indicated overstay rates of more than 25% in some countries. The system created to monitor student and exchange visitor compliance (SEVIS) generates for the immigration enforcement agency an average of 500 cases per week of foreign student and exchange visitors who appear to have gone out of status.
While these statistics certainly point to compliance problems in the exchange visitor program, without better information it is impossible to determine which kinds of programs and which kinds of visitors present the most risk for overstay. There are programs that appear to be working as intended and seem to have low overstay or adjustment rates. However, neither the State Department nor the Department of Homeland Security has a reliable way to assess the risk involved in launching a new exchange program. The SEVIS program and the partially-implemented US-VISIT program will eventually provide the data that the agencies need to assess risk, but the capacity is not there yet. What is lacking is an exit-recording system that will enable DHS to know when visitors have departed, and a greater level of compliance enforcement activity to encourage visitors to comply with the terms of their visa.
It would be most prudent to refrain from launching new exchange visitor programs until better information on compliance is available. All other conceptual problems with long-term or work-related exchange programs aside, it may be possible for the State Department or DHS to make the case that visitors from the three beneficiary countries for the new expanded Summer Work Travel program are low-risk, perhaps using the Arrival Departure Information System (ADIS). If so, the Department should make public the data that support this finding, so that an informed debate over the merits of the program can be held.
In any event, Congress, State and DHS should agree on and formalize the objective criteria that will be used to determine which countries and which kinds of visitors will be allowed to participate in exchange programs, much as these agencies have set standards for participation in the Visa Waiver Program. For instance, countries should be required to demonstrate low visa overstay rates and low visa refusal rates before new non-academic exchange programs involving non-government sponsoring organizations are allowed.
In addition, the criteria for participation should include stricter measures to encourage visa compliance, such as requirements that participants purchase a round-trip transportation, and be subject to exit-recording. Program sponsors and third parties should be sanctioned and/or barred from future sponsorship when foreign visitors do not comply with program rules.
Visa Compliance Problems = National Security Problems. Terrorists, criminals and those seeking better economic opportunities will use any avenue available to enter the United States. Any weakness in our immigration system is ripe for exploitation. According to Janice Kephart, a terrorism expert and former staff member of the 9/11 Commission, The attack of 9/11 was not an isolated instance of al Qaeda infiltration into the United States. In fact, dozens of operatives . . . have managed to enter and embed themselves in the United States, actively carrying out plans to commit terrorist acts. . . . For each to do so, they needed the guise of legal immigration status to support them. Al Qaeda has used every viable means of entry. The longer the duration of the permissible length of stay granted by the visa or the adjustment of status to permanent residency or naturalization, the easier the terrorist could travel both within and without the United States (Immigration and Terrorism: Moving Beyond the 9/11 Staff report on Terrorist Travel, Center for Immigration Studies, September, 2005).
In the face of this threat, before creating yet another long-term non-immigrant visa, policymakers need to be extremely confident of our immigration agencies ability to detect dangerous, or even unqualified, visitors. In my view, for the reasons outlined in the preceding sections, DHS and State have yet to implement the systems to justify either the expansion of exchange visitor admissions or an extension of the authorized duration of stay for exchange visitors.
No Economic Case for Long Term Work-related Exchange Programs. Labor economists generally agree that the United States does not suffer from a shortage of either young or less-skilled workers. In fact, researchers have shown that job opportunities for young people who would be seeking the same kinds of jobs that would be available to Summer Work Travel visitors are actually in decline. The summer youth job market has hit a 60-year low, with an unemployment rate for U.S. teenagers in excess of 60 percent in recent years (see The Summer Job Market for the Nation's Teenagers, by Andrew Sum et al, Northeastern University, May, 2003). Unemployment rates for African American and Hispanic youths seeking summer jobs have been even higher. With job opportunities scarce for American youth, it makes little sense to bring in additional workers to compete with them, especially when the exchange visitors typically earn a lower wage that American youth could command.
If the Summer Work Travel program is to be expanded, policymakers should consider adopting provisions to ensure that these workers do not displace or depress earnings for U.S. youth. The best guard against adverse effects is a numerical cap on the number of work visas issued. A less effective but still reasonable approach would be to require sponsors to show, for example, that the net earnings for the exchange visitors are comparable to what similarly-situated U.S. workers would earn, or to require sponsors to offer the same jobs to U.S. youth at the same time.
Conclusion. Any changes to the nation's visa programs must be made with the nation's best interests in mind. There are few compelling reasons to expand the scope of the Summer Work Travel program to allow participants to stay for longer periods of time, and several compelling reasons to refrain from doing so.
The work-related exchange visitor programs benefit mainly the sponsoring organizations and third party hosts, which realize significant revenue streams from them. The program also benefits the foreign visitors, who might have a positive experience and return to their country with new skills and a fondness for America, but who are also at risk for exploitation, bringing a very negative experience, or who may intend to use the visa as a springboard to permanent residence, legal or otherwise. While an expansion of the Summer Work Travel program would bring some benefits to certain constituencies, it also brings some substantial risks. If not properly managed, it could add to illegal immigration and provide an opportunity for terrorists or criminals to enter and stay in the United States. Moreover, the Summer Work Travel program is not filling an economic or labor need for the United States, but may be exacerbating an already difficult employment outlook for youth in this country.
Thank you for the opportunity to submit these comments. Feel free to contact me if you have any questions. I can be reached at (508)346-3380.
Jessica M. Vaughan
Senior Policy Analyst
Jessica M. Vaughan is a senior policy analyst at the Center for Immigration Studies.