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J-1 Visa Lawsuit Claims Systematic Guest Worker Abuse on State Department’s Watch

"Can you hold these babies for half price?" --State Dept.

“Can you hold these babies for half price?” -State Dept.

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A group of aux pairs have filed a lawsuit with the U.S. District Court in Denver claiming they came to America based on promises that were eventually broken and have been underpaid.  The lawsuit accuses the 15 au pair sponsor programs registered with the U.S. Government of conspiring to set wages below the minimum wage, which if true would be a violation of antitrust laws. 

The aux pairs employment is connected to J-1 visas, meaning termination earns them a one-way ticket home.  To be eligible for the visa, applicants must be 18-to-26, proficient in English, and have a secondary school education (minimum).  

Speaking to The Denver Business Journal, the lawyer representing the plaintiffs said:

“It’s alarming that while the White House and various state legislators are working tirelessly to raise the minimum wage and extend overtime pay across the nation, the State Department’s designated sponsors have blocked aux pairs from receiving the most basic legal protections.”

The case began when one au pair visited Denver-based Towards Justice, a nonprofit that provides legal services to low-wage workers.  According to Nina DiSalvo, executive director of Towards Justice, “She had other concerns that allowed us to delve into the au pair program.  It raised certain red flags about how they were paid.”

According to the lawsuit, the aux pairs were paid $195.75 per week ($4.35 an hour), which is well below the minimum wage.  They are given room and board by the family they look after, but often pay out of pocket for fees required by the sponsor program that connects them to a family. There is no overtime.  

For now, these abuses are perfectly legal under J-1 visa rules, which was created in the 1960’s to promote “mutual understanding” between the U.S. and foreign countries through “educational and cultural exchanges.”  DiSalvo sees the program as systematically abused:

”In the absence of affordable childcare options, the aux pair program has been “converted into a work program” and “turned into an exploitative program.”

As part of the historic lawsuit, the aux pairs are seeking an end to what they view as a “price fixing scheme” and pursuing back wages.  The current wage rate is set by the 2009 State Department bulletin and those involved claim they are simply following the mandate.  However, many argue that the figure is illegal and superseded by pay obligations set by the Fair Labor Standards Act.  As Cole Stangler of The International Business Times notes in his article on the lawsuit:

The State Department too stipulates compliance with all state and local minimum-wage laws. An agency pamphlet specifies that nonimmigrant visa holders are entitled to “at least the federal legal minimum wage” of $7.25 and overtime pay eligibility. Since the lawsuit was filed, the State Department has gone so far as to remove the reference to the weekly stipend from its website. The agency did not respond to a request for comment.

Time will tell how this lawsuit plays out, but one thing is clear: the U.S. struggles to prevent abuse across its visa platforms. Examples abound in our archives.


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