US Visa Law fuels domestic-employee abuse

Tony Edson :
The recent arrest of Indian diplomat Devyani Khobragade has unleashed two kinds of outrage: protests by Indians upset over her treatment by New York police, and, mostly outside of India, anger over Khobragade’s alleged crime of forcing a domestic employee to work long hours for a fraction of the prevailing wage after having pledged in a visa application to follow U.S. labor and wage laws.
Less attention has been paid, however, to a more insidious problem: how international diplomatic practice, and U.S. immigration law, enable the abuse of domestic workers.
Many diplomats, whether foreign or U.S., consider it a right to employ domestic help while on assignment overseas, bringing servants with them as part of their household. U.S. law has two specific visa categories to allow this: one for representatives of foreign governments and another for those working for international organizations. For the 2012 fiscal year, U.S. consular officers issued visas to 1,871 domestic employees accompanying foreign diplomats on assignment to the U.S. Many other countries have similar provisions.
U.S. law requires the employer to pay the greater of minimum or prevailing wage and limit regular scheduled time to 40 hours a week. Let’s be realistic, however: If the employer really intended to respect normal U.S. wage and working conditions, wouldn’t they be more likely to hire locally rather than importing domestic help? (A common Indian reaction to the charges against Khobragade was to scoff that the wages required by U.S. law were impossibly high.)
Cultural sensitivities or the need for foreign language skills may sometimes make local hiring a challenge, yet most areas where embassies or consulates are located have significant pockets of nationals from the country in question. Moreover, many domestic employees are third-country nationals themselves, often hired shortly before their employer’s overseas assignment.
Beyond occasional news reports and hearsay, documenting the extent of the abuse of such domestic workers is difficult. The deck is heavily stacked against complaints by poor foreign workers whose livelihood and visa status-and occasionally the safety of their families back home-depend on the good will of an employer protected from prosecution by diplomatic immunity. In 2008, the U.S. Government Accountability Office reported 42 documented cases of abuse of domestic employees by foreign diplomats in the U.S. since 2001. The actual number of incidents was “likely higher,” it said, and would probably increase as more scrutiny drove the problem further underground.
Even more problematic are the temporary U.S. visitor visas issued to domestic employees accompanying their foreign employers on temporary visits, which have fewer conditions. There is no formal way to count or track such cases; ascertaining the treatment of such workers is even more difficult.
In a final twist, U.S. citizens who reside abroad but are temporarily returning to the U.S. (even for several years) may also bring home foreign domestics on a regular visitor visa. Normally, only U.S. diplomats and high-level employees of multinational companies will meet the conditions to sponsor a domestic. The employee must have at least one year of experience, including six months with the U.S. employer, and a signed employment contract with wage and termination provisions stipulated by regulation.
Given the economic calculus, it’s no surprise that abuses occur. Except in the rare cases where the foreign domestic is already a beloved member of the family-an attachment that tends to require a lot more than six months to form-the servant is being brought to the U.S. because doing so is cheaper than hiring locally or using locally available day-care resources.
The William Wilberforce Trafficking Victims Protection Reauthorization Act, passed by Congress in 2008, provides tools to combat abuse of domestic employees. The basic inequality of the employer-employee relationship, however, unfortunately allows for coercion in many cases that can undermine the act’s protections-a concern that Congress has expressed as recently as last year.
Advocacy groups have called for the lifting of diplomatic immunity in such cases. Yet nations sharply disagree over immunity’s provisions and protections, and they are not shy about retaliating in ways that can jeopardize larger relationships, as we saw this week with reports that U.S. Energy Secretary Ernest Moniz postponed a long-scheduled trip to India in response to rising tensions in the Khobragade dispute.
A better approach would include more rigorous enforcement of the Wilberforce Act. The U.S. could also shine more light on abuse simply by having the State Department release its annual report to Congress on court cases where diplomatic immunity has been called into play-a naming and shaming tactic that the department has so far been reluctant to pursue. It could also give the issue more prominence in its annual human trafficking report.
Of course, the U.S. could simply stop giving visas to foreign domestic workers of diplomats. Unfortunately, rewriting U.S. immigration law is rarely straightforward. It is also likely to trigger unintended diplomatic consequences. Even so, the Departments of State and Homeland Security could act now to eliminate the administrative loophole that allows foreign domestic workers to enter the U.S. and work for both Americans and foreign diplomats on temporary visitor visas with their lesser protections. That would be a useful first step in ending U.S. complicity with employment arrangements that, in practice, often violate its labor laws and commitments to uphold basic human rights.

(Tony Edson, a former deputy assistant secretary for visa services at the State Department, is a management consultant.)

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