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Chicago-Kent Law Review

Volume 92 Issue 1 Changing American State and Federal Article 9 Childcare Laws

7-26-2017

Migrant Workers in The : Connecting Domestic Law with International Labor Standards

Lance Compa Cornell University ILR School

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Part of the Human Rights Law Commons, Law Commons, International Law Commons, and the Labor and Employment Law Commons

Recommended Citation Lance Compa, Migrant Workers in The United States: Connecting Domestic Law with International Labor Standards, 92 Chi.-Kent L. Rev. 211 (2017). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol92/iss1/9

This The Piper Lecture is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 38779-ckt_92-1 Sheet No. 112 Side A 03/01/2017 10:44:39 THE PIPER LECTURE THE PIPER \\jciprod01\productn\c\ckt\92-1\2sh921.txt unknown Seq: 1 6-FEB-17 9:46 38779-ckt_92-1 Sheet No. 112 Side A 03/01/2017 10:44:39 A 03/01/2017 112 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 112 Side B 03/01/2017 10:44:39 THE KENNETH M. PIPER LECTURESHIP SERIES LECTURESHIP M. PIPER THE KENNETH \\jciprod01\productn\c\ckt\92-1\2sh921.txt unknown Seq: 2 6-FEB-17 9:46 The Kenneth M. Piper Lectureship Series is dedicated to the memory is dedicated to Series M. Piper Lectureship The Kenneth to the contributions who made substantial M. Piper, of Mr. Kenneth during more than management and labor relations fields of personnel & Lomb, Inc. with Motorola, Inc. and Bausch two decades of service Piper Endowment, is funded by the Kenneth M. The Lecture Series in memory of her gift from Mrs. Kenneth M. Piper established by a each year at the Programs in labor law are presented husband. Major Lecture Series of Law as part of the Piper Chicago-Kent College 38779-ckt_92-1 Sheet No. 112 Side B 03/01/2017 10:44:39 B 03/01/2017 112 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 113 Side A 03/01/2017 10:44:39 the Inter- 1 , Convention No. 143 M. Piper Lecture at Lecture M. Piper No. 97), July 1, July 1949, 120 U.N.T.S. No. 97), Doc. A/45/49 (Dec. 18, 1990), G.A. G.A. Doc. A/45/49 (Dec. 18, 1990), and ILO 2 , Convention No. 97 concerning OMPA C 211 NTRODUCTION ANCE mtg. at 261, U.N. at mtg. L I. I ) 1/30/2017 7:49 PM on the author’s Kenneth on the author’s International Convention on Protection of the of the International Convention on Protection ELETE D OT N O (D DITS E ACRO M OMPA MIGRANT WORKERS INMIGRANT UNITED THE STATES: CONNECTING 8C Part III examines instruments on three principal international migrant U.S. immigration policy is a matter of domestic law (distinct from ref- (distinct from of domestic law a matter is policy U.S. immigration summarizes current debates and Following this introduction, Part II the IIT Chicago-Kent College of Law, March 22, 2016 22, March of Law, College Chicago-Kent the IIT Note: This article is based Note: This article is 1. U.N. GAOR, 45th Sess., 69th plen. 2. (ILO for Employment Migration Convention Concerning DOMESTIC LAW WITH INTERNATIONAL LABOR STANDARDS INTERNATIONALWITH LABOR LAW DOMESTIC Rights of All Migrant Workers and Members of Their Families Migrant Workers Rights of All Migration for Employment (Revised 1949) Migration for Employment (Revised labor: the United Nations’ policy divides on migrant labor in the United States regarding both docu- States regarding United labor in the on migrant divides policy mented and undocumented workers from abroad. It also notes the absence U.S. policy rights considerations in most of international labor and human discourse, reflecting exceptionalism” a broader “American strain. national Labour Organization’s (“ILO”) national Labour Organization’s Res. 45/158. 71 [hereinafter ILO No. 97]. concerning Migrations in Abusive Conditions and the Promotion of Equali- and the Promotion concerning Migrations in Abusive Conditions ugee policy, which is grounded in international treaties). This paper asks international which is grounded in ugee policy, makers and advocacy immigration policy whether and how in the groups take into account international standards on migrant United States might labor. These standards appear in United Labor Or- Nations, International and pro- provisions on rights international trade agreement ganization, and standards argue that international not migrant workers. I do tections for poli- Rather, they or substitute for U.S. law. inform should override should and advocacy groups’cy makers law and in crafting immigration work changes. policy 38779-ckt_92-1 Sheet No. 113 Side A 03/01/2017 10:44:39 A 03/01/2017 113 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 113 Side B 03/01/2017 10:44:39 7 Sept. [Vol 92:1 But ef- 6 , at 33 (2006), (2006), at 33 , Multilateral Multilateral In 2006, the In 2006, EBATES 3 . D 1120 U.N.T.S. 323 1120 17, 1992,,32 I.L.M. 289 opened for signature opened for signature OLICIES AND P ABOR L LO No. 143), June 24, 1975, subtitled “[n]on-binding principles and principles “[n]on-binding subtitled 4 , ) 1/30/2017 7:49 PM A. Moving “Talent” IGRANT Agreement, U.S.-Can.-Mex., Dec. Multilateral Framework on Labour Migration Multilateral Framework M ELETE D CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW OT N O (D DITS E VERVIEW OF the only one that specifically workers’ the only one addresses migrant ACRO . at 664-70. . M 5 II. O See id OMPA 212 8C Part IV moves to a review of experience with migrant labor provisions labor provisions to a review Part IV with migrant of experience moves Rather than a lengthy parsing of these texts, this article will explore will texts, this article these of a lengthy parsing Rather than Governments around the world have expanded commercial relations Governments around the world have Part V reviews arguments for taking into account international stand- Part V reviews arguments taking into account for 7. ¶11, Annex 1, Cooperation, on Labor Agreement American North 6. 5. North American Free Trade 3. of and the Promotion Migrations of Equality in Abusive Conditions Convention Concerning 4. See Int’l Labour Org. [ILO], their common features and their relevance to current migrant labortheir common debates migrant features and their relevance to current This part continues with a review of discourse. and policy migrant labor treatment in the United States that arguably afoul of international runs standards. of trade agreements—mainly the North American Free Trade Agreement (NAFTA), 8, 1993, 32 I.L.M. 1499 [hereinafter NAALC].8, 1993, 32 I.L.M. 1499 (1993) [hereinafter NAFTA]. http://www.ilo.org/global/topics/labour-migration/publications/WCMS_178672/lang—en/index.htm. fects can also be indirect, as when NAFTA’s supplemental labor agreement workers as one of its “labor principles.” of migrant included protection ILO consolidated keyILO consolidated instruments provisions of these in a onFramework Labour Migration “non-binding”). Opportunity and Treatment of Migrant of and Treatment WorkersOpportunity (I [hereinafter ILO No. 143]. ty of Opportunity and Treatment of Migrant Workers (1975) Workers of Migrant Treatment and Opportunity ty of This gave rise to several complaints and cases under the NAFTA labor potential and its limitations. its both agreement, demonstrating ards and applying a human rights framework in our legal dis- domestic policy recommendations.course, and concludes with a set of rights. As binding international documents, these trade agreements affect documents, international rights. As binding U.S. law and the effect policy. Sometimes, is direct, as when NAFTA cre- ated new visa categories cross-border movement. allowing more through trade agreements, bilateral investment treaties, and other moves tothrough trade agreements, treaties, and other moves bilateral investment and trade in services. of goods exports promote attract investment and to of goods, services, and does money However, the expansion of movement guidelines for a rights-based approach for a rights-based guidelines migration” to labor on (emphasis 38779-ckt_92-1 Sheet No. 113 Side B 03/01/2017 10:44:39 B 03/01/2017 113 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 114 Side A 03/01/2017 10:44:39 HE 213 ,T of Econ. Research, 9 9, (Nat’l Bureau ry herds and milk production. Their milk production. Their ry herds and 8 ) 1/30/2017 7:49 PM THE PIPERLECTURE ELETE D OT People Flows in N O (D Fear of Immigration Drove The Leave Victory – Not Immigration Itself DITS E ACRO M Alan Travis, (June 24, 2016), http://www.theguardian.com/politics/2016/jun/24/voting-details-show-(June 24, See OMPA 2017] 8C In other parts of the country, millions of immigrant workers—again, workers—again, of immigrant In other parts of the country, millions In upstate New York, mostly undocumented migrant workers apply workers apply In upstate New York, mostly undocumented migrant Freed-up movement of capital, goods, and services of capital, goods, it a carries with Freed-up movement “talent”The term professionals, to executives, limited not be should Defining and controlling borders are seen as are seen as and controlling borders Defining to sovereignty.essential 9. 8. Richard B. Freeman, UARDIAN their talent to the year-roundtheir talent to the care of dai work has proven to be a boon economy, to the state’s especially with the caring for upstate holds true for those rise of Greek-styleyogurt. The same apple orchards, Finger Lakes vineyards, and other agricultural production, both year-round and at harvest time. in a and responsibility skill, care, undocumented—apply many them of and poultry include broad range of industries. These sectors meatpacking wielding sharp knives and others themselves (starting with care not to cut in close quarters at rapid line speeds); construction, forestry and landscap- where parks; and other sectors ing; hotels and restaurants and amusement (science, technology, The engineering, mathematics). properly word at- taches to all and responsibilityworkers who bring skill, care, to their tasks. all workers. And that means “outstanding ability”“outstanding fields STEM vaunted those in the O-visa holders, and demand for freed-up movement of “talent”—people applying their skills to skills to applying of “talent”—people their freed-up movement for demand generate How wealth is distributed wealth in a globalized economy. more the movement paper. But the scope of this a question beyond and shared is of talent across borders is a key in producing the wealth. factor Working Paper No.Working 12315, 2006), http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.464.5626&rep=rep1&type=pdf. Governments are lessGovernments are willing on immigration cede decision-making to great exception to this trend, the Euro- bodies. In the to international policy countries member a of people among free movement has pean Union made goods, services and integration alongside capital. of economic fourth pillar But the EU’s “free movement” pressure in pillar faces enormous wake the G not extend to people. As Richard Freeman notes, “[t]rade and international and international “[t]rade notes, Freeman Richard As people. to not extend activity and capital goods of are a larger capital flows in mar- proportion immigration is kets than markets, presumably labor in because govern- reducedments have trade barriers and liberalized capital but have markets, barriers to immigration.” not lowered immigration-fears-were-paradoxical-but-decisive. of the ’s June 2016 “Brexit” June Kingdom’s of the United vote. 38779-ckt_92-1 Sheet No. 114 Side A 03/01/2017 10:44:39 A 03/01/2017 114 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 114 Side B 03/01/2017 10:44:39 , , , 2 ., 1, ORP C ECORD R [Vol 92:1 ROWTH CONOMY 4 (2016), E .G S ’ RIMER ON THE ICROSOFT CON E :AP ETTING THE HICAGO CONOMY C E ., S ROGRAM P USTAIN OLICY S 12 .P ISA ELP AND THE H OMPETITIVENESS AND , H-1B V MERICAN 10 A HE AGES U.S. C The American Immigration Council Immigration Council The American (last visited January (last visited January M 27, 2016); 1–2, 5, 9, 26 (2016), http://nfap.com/wp- ,T FOR MMIGRANTS 13 . ,W ,I Debunking the Myth that Immigration Harms America that Myth Debunking the OBS generate currents that politicians, policy policy currents that politicians, generate ECURING J OUNCIL S ) 1/30/2017 7:49 PM C OUNCIL 11 Compare the Candidates: Clinton vs. Trump onCompare the Candidates: Clinton vs. Trump Immigration B. Competing Realities C ELETE OUNDATION MMIGRATION D I CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW .F OT DEAS FOR N The Advocate’s Dilemma: Framing Migrant Rights in National Settings Dilemma: in National FramingThe Advocate’s Migrant Rights O :I (D MPACT ON MMIGRATION I I KILLED MMIGRATION ATIONAL -S DITS .I E TS M ,N I TRATEGY IGH S , Miriam Valverde, . 145 (2010). 145, , CompeteAmerica, et. al., H ,A 14 (July 15, 2016, 2:46 PM), http://www.politifact.com/truth-o- (July 15, 2016, 2:46 ACRO MERICAN M UST A .J ALENT NDERSON T See, e.g. See See, e.g. See, e.g. OMPA OC A ACT L .S ’ 214 8C Contradictory approachesContradictory and employee views of employer also mark What Maria What Maria be- as Cook describes Lorena conflict and tensions “the F AT 13. 11. Maria Lorena Cook, 14. 10. 12. TUD TUART TRAIGHT ON ROGRAM AND OLITI http://www.semiconductors.org/clientuploads/directory/DocumentSIA/Workforce/19%20Associations %20Immigration%20Myth%20Facts%203-2015.pdf wages-and-economy. istic of a global economy” istic of 4S Brief.August-20162.pdf. Brief.August-20162.pdf. advocates, who appear to inhabit separate universes.advocates, who appear For many employers, of Com- U.S. Chamber The of talent. the United States suffers a dearth merce, the Essential Coalition, ImmigrationWorks Immigration Worker USA, CompeteAmerica and other industry trade associations insist that and we are in desperate need of immigrant more workers to meet labor shortag- growing. es and keep the economy meter/article/2016/jul/15/compare-candidates-clinton-vs-trump-immigration/. http://www.immigrationpolicy.org/just-facts/h-1b-visa-program-primer-program-and-its-impact-jobs- (2002), http://216.92.33.26/special-reports/immigrants-help-sustain-chicagos-economy. AN tween sovereignty of the nation-state and flows character- the cross-border content/uploads/2016/08/Setting-the-Record-Straight-on-High-Skilled-Immigration.NFAP-Policy- S P immigrant workers’immigrant labor powers economic activity. workers, Migrant a keyeconomic important play and undocumented, in role documented economy. the Chicago regional sectors in https://news.microsoft.com/download/presskits/citizenship/MSNTS.pdf (last visited January 27, 2016); S makers, and interest groups around the globe are trying to navigate. Not navigate. are trying globe to makers, and groups around the interest least here in theUnited States, where on one side candidates for office set a immigra- tone, while others support comprehensive harsh anti-immigrant wom- and sending up families deportations breaking and decry tion reform countries. violence-ridden back to en and children asserts that immigrant employees with H-1B visas do not pull down wages of American high-tech workers; they make higher salaries than American counterparts. P 38779-ckt_92-1 Sheet No. 114 Side B 03/01/2017 10:44:39 B 03/01/2017 114 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 115 Side A 03/01/2017 10:44:39 , 215 . J. (March 4, T S ALL (February 8, 2016), 2016), 8, (February ,W IMES 17 .T IN ,F But the same article reported 16 Bar None: Abusing Foreign “Guest Work- Foreign None: Abusing Bar : . 1081, 1102, 1106 (2016). EV 19 Testing Attestations: U.S. Unemployment and Immi- Unemployment and Testing Attestations: U.S. .R EL .R article suggested that therearticle suggested is such a labor The Pushovers ) 1/30/2017 7:49 PM AB THE PIPERLECTURE ELETE .&L D OT Workers Wanted: Construction Sector Fights to Retain Sector Fights to Construction Wanted: Workers Foreign-Born N NDUS Challenges U.S. VisaWorker India Challenges at WTO: Complaint Fees Addresses O (D , 69 I , DITS gy0Vad90Z#.ojwaNJQ26. E Financial Times (May 12, 2016), https://www.buzzfeed.com/kenbensinger/the- , Ken Bensinger et. al., ACRO M Gary Silverman, Ben A. Rissing & Emilio J. Castilla, Ben A. Rissing & Emilio Matthew Dalton, See See Id. See, e.g. See OMPA Research by that Department Ben A. Rissing shows of Labor offi- 15 EED 2017] 8C A recent In their various publications just noted, these pro-immigration advo- pro-immigration these noted, just publications various In their Trade unions, employee associations, Trade unions, employee other worker advocates take and 18 F 19. 16. 17. 18. 15. UZZ year-round labor.seasonal They just work, not to ease what want they see as overly and adverse effect wage require- prevailing wage burdensome guarantees and work payments, travel cost requirements, ments, job posting L, H-2A and H-2B H-1B, meet to engage must employers other conditions workers. In March of bytheir views were reflected government the 2016, a complaintIndia, which filed Trade Organization charging with the World WTO tradeviolated for H-1B employees requirements that U.S. visa rules. ers,”Offense so There Is Almost No Workplace Lives: Even Threatening Their Wages, Stealing Their Extreme that the U.S. Government Not Will Reward Employers with the Chance to Do It Again panding use of L “intracompanyuse panding transfer” visas and other for high-tech for visas and H-2B H-2A to make They want employees. high-skilled “low-tech” available for non-agricultural jobs and agricultural temporary grant Work Authorizations grant Work B (apparently oblivious to connecting the dots) that employers complaining complaining employers dots) that the (apparently oblivious to connecting paylittle as as and workers shortage are resolutely non-union about labor demanding physical labor. dangerous, hour for $10 an pushovers?utm_term=. word for it, without back-up evidence) and end up granting more temporaryword for it, without back-up evidence) and end up granting more of high unemployment. visas at times cates call for H-1B “specialtylifting the cap on occupation” and ex- visas https://www.ft.com/content/46f78afc-ce4d-11e5-831d-09f7778e7377. a polar opposite view. They argue that what employers see as burdensome see as burdensome what employers argue that view. They a polar opposite to recruit such as demonstrating unsuccessful attempts Amer- requirements, ican workers as worker visas, of approval for using guest a are condition easilyregula- evaded by and weakly enforced by government employers tors. Increase in FeesHighly Skilled Workers for Available for Temporary Visas Employees With Schemes and Other Incentives and Other Employees Citizenship Schemes With 2016), http://www.wsj.com/articles/india-challenges-u-s-temporary-visa-scheme-at-wto-1457091168. shortage in the construction industry that employers now sponsor migrant now sponsor migrant employers industryshortage in the construction that workers for them. U.S. citizenship to retain cials over-relyon employers’ “attestations” of labor shortages (taking their 38779-ckt_92-1 Sheet No. 115 Side A 03/01/2017 10:44:39 A 03/01/2017 115 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 115 Side B 03/01/2017 10:44:39 & 20 ISA ISA ACE R RIEFING [Vol 92:1 L-1 V EBUNKING EMPORARY (2010), at (2010), LOBAL OMMERCE ,D G C AND ?, EPI B H-2B T ABOR H-1B TKINSON HE ORKERS L AND THE , HE HE ., T D. A HAMBER OF UST ., T NST I ,B #280 at 2010) 14, (Oct. NST H-2B W I OBERT (2015), http://www2.itif.org/2015- EMPORARY (July 24, 2013, 1:05PM), 1:05PM), 2013, 24, (July OOM ,T OLICY &R ?B .P APER OLICY P HEAP AGER .P C ENSE CON EHIND S grants labor stand- and declining B ,E MPACT OF CON B. N MMIGRATION d, there is no doubt thatdoubt is no d, there mi- many I on the wages and working condi- working and wages on the I the effect of immigrant workers of immigrant effect the on debate surrounding both skilled and both surrounding debate ,E ers conclu- at “contradictory arrive just a little.” direct causal While the OSTA . J. (2009). 125, 127–28 RIEFING ccessed 27, 2016). January C Y DAMS IRA ALLING ’ AKING e United States is whether, and to what is whether, e United States H KILLED ,F OL HORTAGES OR 23 -S t negatively affect labor conditions for do- labor conditions for t negatively affect S ) 1/30/2017 7:49 PM ON CONOMIC ANIEL R E :M IGH H ,EPIB ELETE .L.&P ABOR D L HE HE The Bogus High-Tech Worker Shortage: How Guest Workers Lower How Guest Workers The Worker Shortage: Bogus High-Tech AB CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW EITELBAUM OT OR OR .L N But see O EWSHOUR ONTROL S. T :F temporary-labor/ (a N C (D OMP U.S. Law: The Interstices of and Labor USA, T (Princeton Univ. Press 2014). DITS E ICHAEL , 31 C , 21 ROGRAM P ,M ALENT ACRO UT OF RGUMENTS AGAINST ORKS T M ,PBS A W Hal Salzman et. al., ORKER :O EN As Kati summarizes: Griffith See See, e.g. OMPA T W 22 #416, (Jan. 19, http://www.epi.org/publication/h2b-temporary-foreign-worker-program- 2016), 216 8C The H-2B visa program apparently of travel- hundreds fails to protect The H-2B visa program Labor advocates insist that insist advocates Labor itself is labor shortage alleged the a myth. Each side in this debate Each side in this debate musters and reports to support studies myriad OP OP extent, these workersextent, these an effect have workers. domestic of tions on Studies sions.” workers migrant find that Some a ma- “caused increasingly have At the heart of much of the current current of the At the heart of much workers migrant unskilled th in work domestic labor standards for jor competitive problem”jor competitive workers for U.S. wage reduced have may and rates of some domestic workers. domestic rates of some the aggregate point out that, at Others ards in the U.S. remains hotly conteste remains U.S. the ards in workers, are migrant especially undocumented workers, grant poorly are rights workplace workplaces where in low-wage concentrated followed and poorly enforced. level, migrant workers level, migrant no do workers.mestic of Much low-income on “whether centers debate this workers[domestic] lot or hurt a are of presence mi the between relationship CIENTIFIC T S 22. labor shortage On the side, see, e.g., A 21. 20. 23. Kati L. Griffith, ROGRAMS OREIGN APER MMIGRATION U.S. Wages ing carnival workers whose jobs are controlled by a spurious “union”workers whose jobs are controlled by ing carnival run debunking-myths-high-skilled.pdf (accessed January 27, 2016); U.S. January 27, (accessed debunking-myths-high-skilled.pdf C http://www.pbs.org/newshour/making-sense/the-bogus-high-tech-worker-sho/. its view and to influence public opinion and the policy debate in Con- policy and the opinion public its view and to influence gress. THE http://www.epi.org/publication/bp280/; D I https://www.uschamber.com/sites/default/files/legacy/reports/16102_LABR%20H2BReport_LR.pdf (accessed January 27, 2016). P F P FOR They claim that employers say a lack of talent to justifyhome-grown bring- immigrant of numbers ing large employees workforce into the to replace workers,American save on docile workforce and maintain a labor costs, use of temporary . Moreover, visa visas jeopardizing their fearful of workers who the wages of U.S. pressure on puts downward to hold manage jobs. onto their for-labor-shortages-or-cheap- and Employment Law 38779-ckt_92-1 Sheet No. 115 Side B 03/01/2017 10:44:39 B 03/01/2017 115 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 116 Side A 03/01/2017 10:44:39  G  1<  6HSW \DQG WRSD\ DSHDNH J WKHP EOLFL]HG VHWRRN ,0(6 UYDQWVLQ UQDWLRQDO HGWRUH FDWHV \HW ZLWKZULW WKHPZLWK OWLPLOOLRQ RQVDNLQWR QVSRUWDWLRQ )HE  1< 7 ,0(6 LSORPDWIURPLQGLDLV  DW     ODLPVGLVQH\FROOXGHGWR 1<7 DW ± :'9D VHGRIEHWUD\LQJPLJUDQWFDUQLYDO HGPLOOLRQKWPO"BU   WWHUODERUGLVSXWHDDF  Chinese Nanny Beaten, Starved, Treated :RUNLQJFRQGLWLRQVRI0H[LFDQ  7KH ODUJHVW VDXHUNUDXW SURGXFHU LQ WKH     30 1R &9  :/  1RY    KWWSVZZZZDVKLQJWRQSRVWFRPORFDOPG 3URVHFXWRUVDURXQGWKHFRXQWU\KDYHEURXJKW 1RFY:/ THE PIPER LECTURE PIPER THE Diplomat From India Is Indicted Again over Housekeeper Diplomat From India Is Indicted Again over (/(7(  ' 267  27 C. Litigating Migrant Protections 3 1 A Progressive Champion in Maryland Sides with Seafood Companies Seafood Sides with A Progressive Champion in Maryland 2 Lawsuits Claim Disney Colluded to Replace U.S. Lawsuits Claim Disney Colluded to Replace U.S. with Immigrants Workers $6+ ' Union Accused of Betraying Migrant Carnival Workers Migrant Union Accused of Betraying Indian Guest Workers Awarded $14 Million Awarded $14 Indian Guest Workers ',76 : ( $VKOH\6RXWKDOO $&52 0 5DFKHO :HLQHU /LDP6WDFN %DUU\0HLHU ,QDQRWKHUIRUPHU'LVQH\&RUSFRPSXWHUV\VWHPVHPSOR\HHVLQ -XOLD3UHVWRQ -DQ KWWSZZZQ\WLPHVFRPXVODZVXLWF  See, e.g See See See 203$ 0DU    KWWSZZZQ\WLPHVFRPZRUOGDVLDG @ & ,0(6 . 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Foreign Students in Work in Work Visa Program Plant at Foreign Students Stage Walkout URTHER CCOUNTABILITY AKEN (D F ESTRICTIONS A T R T ’ OUND DITS AS F Laura D. Francis, E H OV . (BNA) Feb. 23, 2016 at A-2. L G ’ EP ACRO AT OULD M 36 . R C N Julia Preston, Beltran v. Inc.,InterExchange, 2015No. 1:14-cv-03074-CMA-KMT, 7253286, at WL U.S. AB MMIGRATION L I See See Id. See also See See OMPA EPARTMENT (Aug. 17, 2011), http://www.nytimes.com/2011/08/18/us/18immig.html; Julia Preston, (Aug. 17, 2011), http://www.nytimes.com/2011/08/18/us/18immig.html; D 218 8C .Id. Employers of H-1B visa holders are now concerned about a legislative are now concerned about a legislative of H-1B visa holders Employers In February 2016, a class action suit on behalf of foreign au pair em- behalf of foreign au pair In February class action suit on 2016, a A 2011 front-page story in the New York Times about J-1 visa holders holders J-1 visa about story Yorkthe New front-page A 2011 in Times 34 AILY 36 32. 33. 34. 35. 31. , D CTIONS IMES KILLED TATE 20161.pdf. 20161.pdf. es proposal that would make it easier for workersAmerican to file lawsuits against companies They foreign employees. who hire say, “The goal ap- that they will avoid peril for employers pears to be to produce enough legal foreign nationals in the United States.” hiring high-skilled *5–6, *43 (D. Colo. Feb. 22, 2016). 22, Feb. Colo. (D. *43 *5–6, argue that such measure would “have the effect of.argue that such measure would “have . .encouraging many ployees holding J-1 visas went forward to trial. http://www.nytimes.com/2012/05/05/us/politics/us-revises-foreign-student-job-program.html. working long hours in abusive conditions packaging products for Hershey products for conditions packaging abusive hours in long working the cul- as not a cheap labor scheme, program Corp exposed the Chocolate youngto be. it was foreigners for experience tural exchange meant World-Impact-of-Proposed-High-Skilled-Immigration-Restrictions.NFAP-Policy-Brief.August- State Department reformed the program, but the Government Accountabil- but the Government the program, reformed State Department ity to lack the program continues in 2015 that the Office found safeguards necessary areensure that participants and not offered cultural activities to fees. charged exorbitant http://www.gao.gov/assets/670/668453.pdf. A ‘Like a Dog’ in Wealthy Minnesota Suburb, Authorities Say, Department Revises Foreign Student Job Program after Abuse Complaints S https://www.washingtonpost.com/news/morning-mix/wp/2016/07/18/chinese-nanny-beaten-starved- treated-like-a-dog-in-wealthy-minn-suburb-authorities-say/. S T teen J-1 visa sponsoring companies colluded to suppress wages in violation colluded to sponsoring companies teen J-1 visa Act and state wage Labor Standards Act, the Fair of the Sherman Antitrust claims for held that the au pairs can maintain court also and hour laws. The fiduciary duty,fraud, breach of unjust enrichment and promissory estop- pel. companies to expand resources abroad and place people in other more countries.” 38779-ckt_92-1 Sheet No. 116 Side B 03/01/2017 10:44:39 B 03/01/2017 116 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 117 Side A 03/01/2017 10:44:39 219 :A ALE S P FOR U , at 5 (2013), BUSE A REAM D 37 MERICAN A note 4, at 11. ECRUITMENT R HE HE supra opriate, should play an important an important should play opriate, , , the International Labor Organiza- , the International ., T andards and other international in- international other and andards velop their own policies to manage to manage policies own velop their RP ABOR and only mentions in passing related G L ) 1/30/2017 7:49 PM ORKING THE PIPERLECTURE W ELETE D OT NTERNATIONAL N I However, this impressive 50-page report, backed up 50-page report, backed However, this impressive O (D 38 ECRUITMENT DITS Multilateral Framework E NDING .R E AB ACRO L D. International Standards and American Exceptionalism American and Standards D. International M L ’ NT Multilateral Framework on Labour Migration Multilateral Framework on Labour OMPA 2017] 8C In its 2006 This is not surprising, nor is it a cause for criticism. It simply reflects is it a cause for criticism. This is not surprising, nor But we in the United States have yet to seriously engage international Both sides in the labor-shortage vs. labor-exploitation debate make debate vs. labor-exploitation in the labor-shortage Both sides labor migration. International labor st International labor migration. as appr as well as guidelines, struments, States have the sovereign right to de right sovereign States have the fair. and effective coherent, these policies make role to 37. 38. I LUEPRINT FOR ILO conventions. the realitythat international law and international labor and human rights in American policy purchase among discourse, even standards have limited containedadvocates whose long been core principles have newly-proposed in these international instruments. With the world’s longest-standing con- labor standards in developing migrant labor policies. For example, a 2013 For example, labor policies. labor standards in developing migrant immigrantcritical analysis unions and of U.S. immigration by of a coalition worker advocacy of groups concludes that regardless visa category, immi- Statesgrant workers in the United common” face “disturbingly patterns of coercion, retaliation, blacklisting abuse including “fraud, discrimination, labor, indentured servitude, debt bondage and cases, forced and, in some trafficking.” human https://fairlaborrecruitment.wordpress.com/. B compelling arguments. Ultimately, on underlying arguments depend compelling arguments. the Labor advocates of approach. inclinations and angle political criticize what they see asmean (nor of immigration the this doesn’t programs. But misuse It means that the halted. United be should that immigration argue) do they the needs of companies and that balances policy States a new immigration of high labor standards and protection needs for with the overall economy workers’ concerning rights norms is where international rights. This human analysisdiscourse. and inform migrant labor can tion (ILO) recognized the reality that member statesreality not willing to cede are member the that tion (ILO) recognized sovereignty on basic immigration policy, while recommending that they into consideration: standards take international by more than 300 source citations, offering eight “core principles” eight by than 300 source citations, offering more and Nations’ discuss the United not does detailed policy recommendations, International Convention on Protection of of the Rights All Migrant Work- ers and Members of Their Families 38779-ckt_92-1 Sheet No. 117 Side A 03/01/2017 10:44:39 A 03/01/2017 117 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 117 Side B 03/01/2017 10:44:39 , ., ., RG RG 1527, 1527, O O . [Vol 92:1 EV 44 ABOUR .L.R L U.N.T.S. 27531. ABOUR L L ’ OLUM NT L ’ ,I , 102 C 102 , NT tions and decision mak- ,I and the Convention on the Convention on the and the Nov. 20, 1989, 1577 Nov. 20, 1989, 1577 40 It has not ratified either of the 98 on the right 98 on equal on to organize, No. 100 that international labor law pro- labor law that international erican labor law (footnote omit- (footnote erican labor law 43 can labor law, or even a critical a critical even or can labor law, y not be convinced that American la- American convinced that y not be Ratifications of C143 -Ratifications of C143 (Supplemen- Migrant Workers ) 1/30/2017 7:49 PM L.J. 1564, at 1567–75 (2006). at 1567–75 1564, L.J. ALE ELETE 41 D CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW int, American legal institu int, American legal OT N The Ossification of American Labor Law , 115 Y , O Law’s Migration: American Exceptionalism, Silent Dialogues, and Feder- Dialogues, Law’s Migration: American Exceptionalism, Silent (D DITS E ., ACRO RG M O Judith Resnik, Practically States the United world, for example, alone in the has 42 See States for United ILO Conventions: Ratifications See See -of C097 Ratifications 1949 (No. (Revised), Convention for Employment Migration 97) OMPA 39 ABOUR 220 8C The United States has ratified just 14 of the ILO’s 14 189 conventions, The United States has ratified just The “American exceptionalism” strain mix is in our law and policy ers have thus have ers claim the to been deaf far bor law, old and flawed as it is, is a model for the modern world. But But world. modern for the is, is a model as it flawed and old bor law, to the present po more The official American view is that international human rights are endan- rights are human that international is official American view The rest of for the law is a model labor American that and elsewhere, gered world ma rest of the The the world. vantage point from which to view Am from point vantage vides a potential model for Ameri for model potential a vides ted). L 43. 40. of Discrimination Against of All Forms Elimination on the United Nations Convention 41. of the Child, United Nations Convention on the Rights 42. Cynthia L. Estlund, 39. 44. L ’ NT alism’s Multiple Ports of Entry and Members of Their Families, 18, 1990, 2220 U.N.T.S. December and Members 39481. and among the 14 are just two of the organization’s eight “core conven- the 14 are just two of the organization’s and among tions” labor and child labor. on forced tary Provisions) Convention, 1975 (No. 1975 Convention, tary Provisions) 143) http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT _ID:312242:NO (last visited September 8, 2016); 1589 (2002). Rights of the Child (CRC). the Rights of especially marked in the labor-related field. Outside a small cadre of com- cadre especially a small in the labor-related field. Outside marked most specialists, actors inparative and international labor law the U.S. provisions in and labor with ILO conventions have little familiarity system instruments. As one scholar noted: other international Women, Dec. 18, 1979, 1249 U.N.T.S. 20378. U.N.T.S. 1249 18, 1979, Dec. Women, ILO’s migrant labor conventions, nor the UN migrant convention. nor the UN migrant labor conventions, ILO’s migrant stitution, our Bill of Rights, and a rich rule-of-law tradition, Americans Americans tradition, rule-of-law a rich and of Rights, Bill our stitution, we tend to think our order to us how world to tell rest of the don’t need the affairs. http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102871 http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102871 http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT Migrant Workers convention, of the 8, 2016); on ratification _ID:312288:NO (last visited September see United Nations International Convention on the Protection of the Rights of All Migrant Workers refused to ratify the UN Convention on the Elimination of All Forms of Forms of of All Elimination on the ratify the UN Convention refused to Discrimination (CEDAW) Against Women (last visited September 8, 2016) (The(last visited September United States hasforced labor and ratified Convention No. 105 on No. Convention ratified not The United States has of child labor. forms 182 on worst Convention No. No. of association, freedom forced labor, No. 87 on 29 on labor.). and No. 138 on child No. 111 on nondiscrimination, pay, I 38779-ckt_92-1 Sheet No. 117 Side B 03/01/2017 10:44:39 B 03/01/2017 117 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 118 Side A 03/01/2017 10:44:39 . , 221 RG O 48 45 ULTURAL RACTICE P It goes on to .&C 47 CI ., S AW AND DUC E The terms of the convention U.S. L ATIONS 49 N the US and other advanced in- advanced other and US the in the nation-state. This gives This gives the nation-state. in NITED h immigration arguments typically arguments h immigration e one hand, universal norms such as such as norms universal hand, one e U , , e framework that is self-limiting. that framework e ) 1/30/2017 7:49 PM TANDARDS AND S THE PIPERLECTURE A. International Norms ELETE D OT note 2 at annex I–II. N The Advocate’s Dilemma: Framing Migrant Rights in National Settings Dilemma: in National FramingThe Advocate’s Migrant Rights 145, 146 (2010). 145, note 3 at art. 3. O (D supra supra 46 DITS USTICE E J NTERNATIONAL ACRO M OCIAL ILO No. 97, S International Migration Convention art. 8–10. art. III. I See Id. OMPA 2017] 8C The UN adopted its migrant worker convention in 1990, but it took worker convention The UN adopted its migrant Adopted in 1975, Convention No. 143 on migration “in abusive condi- No. 143 on migration Adopted in 1975, Convention In the face of American exceptionalism, are we in the United States States the United we in are exceptionalism, American face of In the A brief summary on mi- international instruments of the three major dates to 1949 for employment ILO Convention No. 97 on migration There are political, legal, and discursive limitslegal, and discursive on political, There are the use of human of the Moreover, much Unitedparticularly in the rights frames, States. in on immigration debate contemporary around econom- arguments about security, revolves democracies dustrial that areics, and law—arguments rooted on th dilemma: advocate’s rise to the human rights,which well suited are theoretically to advancing immi- grants’ have may claims, little resonancewithin national settings; on the turn, and the terrain on which advocates must fight, derive their values must fight, derive on which advocates turn, and the terrain a nation-stat from and assumptions other hand, the debates around whic around the debates hand, other 49. For an overview entry of adoption, into force, and ratification of the Migrant Workers Con- 45. Maria Lorena Cook, 46. 47. ILO No. 143, 48. TUDIES IN vention, see more than a decade for it to enter into force. than more tions” aims at traffickers and their victims. It calls on countries to “suppress employ- and illegal for of employment migrants clandestine movements ment” of migrants and to criminally prosecute traffickers. grant labor standards introduces this section and the discussion that fol- grant labor standards introduces this lows. about information recruiting and misleading mainly at fraudulent and aims admin- to themselves for governments It calls migrant work opportunities. ister services, orlabor recruiting migrant to carefullyregulate such services by private actors. promote equality of opportunity and treatment for migrant workers. for migrant and treatment equality of opportunity promote 4S [UNESCO], http://www.unesco.org/new/en/social-and-human-sciences/themes/international- 7, 2016). November (last visited migration/international-migration-convention/ ready and international standards international and learn from to examine workers’ on discourse migrant how Maria Lorena rights? Here is Cook the problem: characterizes 38779-ckt_92-1 Sheet No. 118 Side A 03/01/2017 10:44:39 A 03/01/2017 118 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 118 Side B 03/01/2017 10:44:39 , , ., RG O note 3 [Vol 92:1 supra RGANIZATION O 50 note 3 art. 1. supra ABOUR L L ’ NT note 2 art. 6; ILO No. 143, ,I supra Ratifications of C143 -Ratifications of C143 (Supplemen- Workers Migrant note 52 art. 17; ILO No. 143, ABOUR L supra ) 1/30/2017 7:49 PM ELETE D CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW OT N O 53 (D 52 DITS E Non-discrimination (i.e. on traditional grounds such as race,Non-discrimination (i.e. on traditional etc., separate from migrationsex, national origin, religion sta- tus); Humane treatment that respects the essential dignity of the treatment Humane person; ACRO M 51 United Nations Migrant Worker Convention art. 7, Convention United Nations Migrant Worker U.N.T.S. 2220 39481 18, 1990, Dec. Migrant Worker Convention, x x Id. See -of C097 Ratifications 1949 (No. (Revised), Convention for Employment Migration 97) See See OMPA 222 8C Among Organization for Economic Cooperation and Development and Development Cooperation for Economic Organization Among Notwithstanding relatively low ratificationNotwithstanding these instruments levels, and protections of migrant rights The international instruments on 50. 51. 52. 53. L ’ NT (OECD) states,member ratified the onlyMexico and have Chile, the UN’s below far forty is still The total of migrant labor convention. [hereinafter Migrant Worker Convention]; ILO No. 97, reflect internationalcommon expectations workers as to how migrant two ILO worker convention and the should be treated. The UN migrant complex documents. This article dense, are long, migrant labor conventions to delve into their fine details. Rather, it synthesizesis not going central precepts and lay them reality and on-the-ground policy, alongside U.S. law, howto examine treatment of migrant workers in the United States com- standards. ports with global workers share these principles: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT _ID:312242:NO (last visited September 8, 2016); 1975 (No. Convention, tary Provisions) 143) required at least twenty at least required ratifications that a first force, so into before going countries is not alone assuming Mostly migrant-sending obligations. mover the made up first twentyThis pat- in 2003. threshold achieved ratifiers, a yearsheld in tern has ratified the twenty countries since, when another countries. primarilylikewise of them most sending convention, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT _ID:312288:NO (last visited September 8, 2016). art. 10. nearly 200-country membership, compared with CEDAW and the CRC, membership, compared nearly 200-country by universal ratificationalmost States). (but not which have the United is also characterized by labor conventions ILO Ratification of the migrant ratified countries have 49 Convention approval: mostly sending-country Unit- the not including 143 (again, ratified convention No. 97, and 23 have ed States). I 38779-ckt_92-1 Sheet No. 118 Side B 03/01/2017 10:44:39 B 03/01/2017 118 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 119 Side A 03/01/2017 10:44:39 223 56 note 3 at art. 10. supra 59 ation because of sex, race, na- 58 note 52 art. 21. note 52 art. 83. note 52 art. 27. 57 54 note 2 at annex I-II. supra supra supra 1. Discrimination ) 1/30/2017 7:49 PM note 2note art. 6; at ILO No. 143, THE PIPERLECTURE B. U.S. Law and Practice supra ELETE supra D OT N O (D 55 DITS E Regulated recruitment systems ensuring that workers are ap- that workers ensuring systems recruitment Regulated tempo- under employment conditions of and terms prised of and conditions terms rarythat promised visas and work become a reality,excessive having to pay without workers get their visas and their costs, or bribes to fees, transportation jobs; Document integrity ensuring that migrants integrityDocument posses- maintain migrants that ensuring have immediate,sion of or their access to unfettered pass- or any visas, birth certificates vital other permits, ports, work document; personal Wages, conditions, and other terms of employment “not less terms of employment and other Wages, conditions, favorable” are “nationals”; than those of co-workers who Freedom of association, the right to organize, and the right to right to of association, the Freedom bargain collectively; workers and remedy for injustice—migrant Access to justice of for violations them recourse available to have legal should of labor standards under national law, violations minimum of terms or violations contracted conditions of employment, visas. guaranteed by their work ., Reyes-Gaona v. NCGA, 250 F.3d 861 (4th Cir. 2001). Cir. v. NCGA, 250 F.3d 861 (4th Reyes-Gaona ., art. 7; ILO No. 97, ACRO . art. 66; ILO No. 97, M Migrant Worker Convention, Migrant Worker Convention, Migrant Worker Convention, x x x x x See Id See See, e.g See See Id. See OMPA 2017] 8C Addressing each of these in turn, the following examples of ways in Addressing each of these following examples in turn, the discrimin workers face Many immigrant 55. 54. 59. 58. 57. 56. tional origin, religion and other grounds. For starters,religion and foreign recruiters cantional origin, visas for employ- seeking temporary openly against workers discriminate of non-extraterritorial principle United States, based on the ment in the statutes. U.S. anti-discrimination application of which conditions for immigrant workers in the United States fail to live up for immigrant which conditions takingbenefit from efforts might reform suggest that to international norms baseline standards. to these and responding into account 38779-ckt_92-1 Sheet No. 119 Side A 03/01/2017 10:44:39 A 03/01/2017 119 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 119 Side B 03/01/2017 10:44:39 ,N. (De- [Vol 92:1 ATCH (October 17, W IMES OWA Sexual harass- ,I Y. T . 2015), 16 (Apr. 61 M A ,N. (May 15 2012), 2012), 15 (May . 2015), (September XFAM 237, at 245–54 Grace Meng, (2010); NST Beyond that, Amnesty Inter- ,O ATCH W 64 OMEN But discrimination can be sub- But discrimination W 62 alth services; inadequate access to .I Y ’ Foreign Labor Fills Vacancies at Trump Club Fills Vacancies Foreign Labor OL GAINST P IGHTS A R Working in Fear: Sexual Violence Farm- Working against Women Examining the Sexual Harassment Experiences of Mexican Sexual Harassment Experiences Examining the ) 1/30/2017 7:49 PM 2. treatment Humane IOLENCE ELETE D CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW UMAN Settlement for a Shackled Pregnant Woman litigation and many household domestic employees employees domestic and many household litigation OT , 16 V IGRATION N s/ (accessed January 31, s/ (accessed January 2016). O They and members sufferof their families economic, Economic, Social, and Health Effects of Discrimination on Latino Immi- on Latino Effects of Discrimination and Health Economic, Social, note 23, at 126, 129, 134, 150-51, 161. 150-51, 134, 129, at 126, note 23, (D 60 ,H DITS supra E ,M ., Irma MoralesWaugh, ., Julia Preston, ACRO M Cecilia Ayón, Charles V. Bagli & Meghan Twohey, Griffith, (February 25, 2016), http://www.nytimes.com/2016/02/26/us/politics/donald-trump-taps- 63 See See, e.g See, e.g See See OMPA 224 8C Once here, many immigrant workers endure discrimination both bla- here, Once both discrimination endure workers many immigrant Conditions for immigrant workers suchConditions for immigrant as the welders India in from Poor Housing, Wage Cheats Poor Housing, Wage still Plague Midwest Migrant Farm Workers IMES Signal International Signal 63. 62. 64. 60. 61. the same visas work in “back-of-thethe same visas work house” cooking and cleaning. In one hotel in Florida Mar-a-Lago resort Donald Trump’s notable example, Eastern from of H-2B visa holders applicants in favor spurned citizen job Europe. grant Families immigrant-families (accessed Februaryimmigrant-families 19, 2016). Immigrant Farmworking Women tler, too, as when resort operators employ young white East European and white East employas when resort operators tler, too, young workers holding(mostlyRussian “front-of-the- H-2 visas for women) house” customers, while contact with Americans withMexican and Central midwest-migrant-farm-worker sexual-violence-and-sexual; Sara Kominers, A Literature Review United States: workers in the social and health effects ofsocial and discrimination areas. in many tant and disguised. tant and ment is an especiallyment is an abuse. widespread Cultivating Fear: The Vulnerability of Immigrant in the Violence and US to Sexual Sexual Harassment national has documented pervasive problems with conditions of detention, detention, of with conditions pervasive problems national has documented detainees with individuals convicted of of immigration such as comingling and excessive offenses; inappropriate criminal use of restraints; inadequate access to healthcare, including mental he Y. T https://www.northeastern.edu/law/pdfs/academics/phrge/kominers-report.pdf. http://www.migrationpolicy.org/research/economic-social-and-health-effects-discrimination-latino- cember 30, 2013), http://investigatemidwest.org/2013/12/30/poor-housing-wage-cheats-still-plague- 30, 2013), cember the in anti- prosecutions clearlytreatmentafoul of humane run require- of non-conformance with the humane treat- ments. One shocking example being women in detention accounts of immigrant ment standard is found in birth. shackled to hospital beds while giving 2013), http://www.nytimes.com/2013/10/18/us/settlement-for-a-shackled-pregnant-woman.html; Laura2013), http://www.nytimes.com/2013/10/18/us/settlement-for-a-shackled-pregnant-woman.html; https://www.hrw.org/report/2012/05/15/cultivating-fear/vulnerability-immigrant-farmworkers-us- foreign-work-force-for-his-florida-club.html. Mills, 38779-ckt_92-1 Sheet No. 119 Side B 03/01/2017 10:44:39 B 03/01/2017 119 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 120 Side A 03/01/2017 10:44:39 , T ’ 66 225 ISA ISA OV V USA, PECIAL S AILURES F ROTECTIONS P 33 (2011), 33 (2011), EVEAL R GRICULTURAL ETENTION IN THE ORKERS WITH D NCREASED W EPORTS Diplomats, officials Diplomats, officials :I R H-2A A 67 ORKERS 68 W OMESTIC HY THE ROGRAMS D P MMIGRATION :I :W ONFIDENTIAL 73 (2009), http://www.nilc.org/wp- ISA V :C UEST B BUSE OF G USTICE J OREIGN H-2 F :A 69 YSTEM S iles/documents/7.2.a.6%20No%20Way%20To%20Tre ENTERS AND 65 OME C REAT A ITHOUT H T W ) 1/30/2017 7:49 PM ROKEN AND 3. Document integrity 3. Document THE PIPERLECTURE AY TO AILED ELETE ., A B W D AL O OT ETENTION , at 31, 36, 72 (2015). . 5 (June 2001), https://www.hrw.org/reports/2001/usadom), (accessed 4. Regulated recruitment systems recruitment 4. Regulated N D IDDEN IN THE USA, J ,N U.S. O Woman escapes modern-day slavery in a home near the nation’s capital Woman L ’ (D ,H , GAO-15-154, H-2A , GAO-15-154, TATES NT ORKERS I IER S DITS UMLIN ET W P EWMAN E T N FFICE O AILS F ACRO NITED AROL MMIGRANT TAN MNESTY AREN M U OREIGN C E Petula Dvorak, A K F , 15, 2013. April See See See See See OMPA OST 2017] 8C Recruitment abuses are common in U.S. temporary work visa pro- in U.S. temporary Recruitment abuses are common Other detention abuses include denial of family visitation, denial of denial visitation, of family denial abuses include Other detention Document confiscationDocument in puts employees effective captivity.are They Document integrity is a recurring problem for immigrant workers in workers for immigrant problem integrity is a recurring Document U.S. I .P 67. 68. 65. 69. 66. ASH CCOUNTABILITY EEDED FOR ISAS IN THE ROGRAM grams. A 2015grams. report bythe U.S. General foundAccounting Office evi- dence of “third-party charging recruiters fees; not workers prohibited physical recreation, access, denial of telephone denial of access to legal material and other of correspondence denial presentations by and attorneys, property, personal of funds and loss) (and resulting storage mail, improper in transfer fromabusive conditions one facility to another, denial of toilet facilities in hold andtreatment. other egregious cases of inhumane rooms, content/uploads/2016/02/A-Broken-System-2009-07.pdf (accessed February 19, 2016). February (accessed content/uploads/2016/02/A-Broken-System-2009-07.pdf W already isolated in temporary employee housing quarters, usually with no usually housing quarters, already employee in temporary isolated documents they personal without But means of independent transportation. fear even to flee an abusive employer. P A N V exercise; and denial and exercise; of communication means other access and of telephone or advocates. members with family of international organizations, international businessmen and other wealthy wealthy and other international businessmen of international organizations, domestic workers household do likewise with workers hold- of employers ing with B-1, G-5 and A-3 “personal servant” visas. https://www.farmworkerjustice.org/sites/default/f 31, 2016); U.S. (accessed January at%20A%20Guest%20H-2A%20Report.pdf G IN And remember, these are not detainees. And remember, criminal Crew leaders and employersthe United States. seize passports, birth often certificates and visasand H-2B workers. from H-2A January 31, 2016). January 7justice?page=show (accessed January 31, 2016). 25, (March http://www.amnestyusa.org/research/reports/usa-jailed-without- 2009) at 38779-ckt_92-1 Sheet No. 120 Side A 03/01/2017 10:44:39 A 03/01/2017 120 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 120 Side B 03/01/2017 10:44:39 : ,at H-2 UEST UEST :G [Vol 92:1 TATES ENTRO DE S ECRUITMENT 22 (2007), 22 (2007), YSTEM R S NITED U LAWSTHE IN F URSE N , 2015, 29, December Nurses recruited to Nurses recruited AMING THE NDUSTRY I 71 EWS .,G N MP 70 ORKERS IN THE .E UNDAMENTAL W EED L ’ F :F NTERNATIONAL I ROF UZZ .P URGEONING ,B note 67 at [CITE]. B ECHNICAL ASED EPT EVEALED T R note 52 art. 26. supra , ., U.S.-B fs/NURSING_CODE_RESEARCHREPORTYR1.PDF. supra The Coyote ) 1/30/2017 7:49 PM FFICE AL O 73 ., AFL-CIO D . In manyby cases, they are hired and placed But less favorable wages and working condi- But less favorable wages and working 49 (2013), http://www.cdmigrante.org/recruitment-revealed- ELETE ECRUITMENT ary-worker-program-and-recommendations-for-change/. 5. Equal treatment at work D 76 72 R CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ROFESSIONAL AND OT P N O ROGRAM (D ITTMAN ET RACTICES OF A P P ORNING ET AL P IGRANTE D CCOUNTABILITY DITS M E A T ’ ORKER ACRO ROGRAMS AND OV ATRICIA P Ken Bensinger et al., M W P ENNIFER J Migrant Worker Convention, 75 Then he offered the surplus labor force to other employers (grow- employers surplus labor force to other Then he offered the ISA ISA 74 See Id. See Id. See See OMPA V ERECHOS DEL 226 8C The international norm equal (i.e.requires The international norm less “not favorable”) treat- A prominent U.S. recruiter was found to have manipulated the H-2B the H-2B have manipulated U.S. recruiter was found to A prominent Many debt to secure on high levels of workers take For exam- visas. D 72. 75. 76. 73. 74. 71. 70. U.S. G ORKER EMPORARY TRUCTURE AND “breakage fees” in the tens of thousands of dollars if they leave before the ends. full contract period ment of migrant workers. ment of migrant visa program by bringing in thousands more workers than clients properly properly workers than clients more in thousands visa program by bringing sought. tions for immigrant compared workers, with non-immigrants, permeate the https://www.macfound.org/media/article_pd http://www.buzzfeed.com/kenbensinger/the-coyote#.xa6OdoEBV. fundamental-flaws-in-the-h-2-tempor LOS S staffing agencies that contract their labor to hospitals at salariesthat contract their labor to hospitals staffing agencies far below nurses. that of non-immigrant ple, Filipino teachersple, Filipino recruited visas were with H-1B to work in Louisiana over sign contracts forking had to fees and recruitment in charged $15,000 agency. recruiting salaries to the their of 10 percent ers, landscapers, ski resort owners and more) and coached them on how to on how and coached them ers, landscapers,more) owners and ski resort thus circumvent- accepting job offers, workers from discourage American to show a ing the requirement shortage. The recruiter in- U.S. employee the token U.S. workers to game handful of to hire a structed employers workers in vulnerable, Then,system. immigrant treated they abusive condi- work under H-1C “nursing shortage”work under visas often sign contracts with must W providing information about a job, when required, such as such required, job, when a wage about or level; information providing about job conditions.” information false providing T 49 C http://dpeaflcio.org/wp-content/uploads/Gaming-the-System-2012-Revised.pdf; (2012), tions as a surplus labor force that employers traded among themselves on themselves traded among that employers force labor tions as a surplus an as-needed basis. 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