When the Exchange Visitor Program was created in 1961, it was designed to "increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange." Participants are allowed to work so, for many years, the program enabled young adults to serve as au pairs, camp counselors and teachers in the U.S. But businesses are now using the program to secure seasonal workers, much like under the H-2B visa program, in ways not anticipated under the original program.
The EVP was meant to give foreign students an opportunity to travel and learn about the United States on their summer break. Work permits were included to enable students to finance their stay. The J-1 visa participants get allow them to stay in the U.S. for up to 18 months. Many go to school for a portion of the term, and work for the rest.
Participants were never supposed to be tied to one employer or place. The visas cannot be used for ordinary employment or to replace other workers. And jobs are supposed to have a bona fide training component. But since the State Department, which oversees the EVP, does not monitor employers, the EVP is a prime candidate for abuse.
Employers like J-1 workers because they are not subject to hourly maximums like American workers. And there is no requirement to house them or pay FICA taxes. The cost savings and lack of oversight make J-1 workers a great alternative to H-2Bs for employers who have no interest in employing more expensive American workers.
WCAI, a National Public Radio station in the Cape Cod area of Massachusetts, ran a series of articles this week on the use of J-1 workers at Cape tourist attractions. One article quoted Nancy Gardella of the Martha's Vineyard Chamber of Commerce saying, “J-1's have in some way this year saved the day. We don’t have the appropriate number of adult H-2B workers, so we supplement those positions with J-1 students. So we’re compromised. Neither is able to fully [appreciate] the experience it should be."
State Department spokesman Nathan Arnold told WCAI, "We strongly believe that this is a cultural exchange, and we believe summer work travel belongs in the state department. The participants are meant to interact with Americans to improve their English. The goals of our program are very different from a labor program, and I hope people realize that."
WCAI interviewed an EVP critic that says employers are mostly using the program as a source of labor. "The fact that the program is masquerading as a tool for diplomatic relations, but is only really functioning in practice as a labor program, is emblematic of the issues with its structure and the regulations that fail to uphold the program's original mission."
WCAI found that J-1 workers faced difficult working conditions. Many work 14-plus-hour days for the three to four months they’re on the Cape. "I haven’t done anything but work. On my days off, I sleep, and then I’m back at work again, so it’s like a cycle," one worker said. "I at least expected to have some sort of fun... but nah, not here." Another said, "You do kind of count the days like you’re in prison sometimes. Some days it’s very nice, and other days it’s like, 'I want to go, I want to leave.' I’m not going to lie, it is very hard."
Some Cape employers treat J-1 workers well and try to honor the cultural exchange aspects of the program. Erin Tiernan, the owner of Basics and Eastaway clothing stores, said “because my staff is younger, we try to do activities that help a millennial staff stay together and be enthusiastic about a job. So we do activities like a barbecue, staff hike, staff paddle night." But she believes many businesses don’t enhance their J-1 workers’ experience.
University of Massachusetts law professor Irene Scharf said employers can abuse J-1 workers, especially if they’re short of workers. "It’s not surprising that the students on this program have raised issues of overwork and underpay, because the employers need the workers, and they’re trying to pay the lowest wage they can pay. To take this program and now say you have teenagers, able to come for three, maximum four, months to work during an intense summer period does not comport with the original intent of the J-Visa program. It doesn’t at all.”
Over the last decade, the State Department has admitted about 450,000 EVP participants each year from more than 200 countries. There is no statutory cap so the department decides how many come in any given year.
Every year employers in places like Cape Cod push for an increase in the H-2B cap so they can import more cheap foreign seasonal labor. That has been difficult to achieve, fortunately, but I wonder whether they’re also pressuring the department to increase the size of the EVP. For the sake of our college students and other American workers who would love to have these seasonal jobs, we’ll be watching.
Updated: Fri, Sep 14th 2018 @ 5:00pm EDT