Month: July 2011

In June 2011, the U.S. Department of Justice announced the indictment of a Maryland couple on charges that they held a Filipina domestic worker in servitude.  The couple lured the victim who was impoverished, uneducated and mother of 8 children by using false promises of a salary that would support the victim’s children in the Philippines. The indictment document reveals that the couple “procured a fraudulent visa to allow the victim to enter the United States; confiscated the victims documents after she arrived; and compelled her labor for 13 hours a day over a period of 10 years, using threats, assaults, withholding of pay an a peonage contract to coerce the victim’s continued service.”

This Filipina who is identified only as “T.E.” successfully escaped from the 10 years of abuse by her U.S. employer.  The court records reveal that she also tried to escape in 2002. Her employer threatened her with arrest if she did not return. Because of fear, she was compelled to return to her abusive employers. Upon her return, the employer threatened to shoot her if she tried to run again. Indictment papers also reveal that the employer had hit, pinched and poked her with knives. Finally, in 2009, she escaped and never returned.

The indicted couple will stand trial. If convicted, the defendants each face a maximum sentence of up to 50 years in prison and $250,000 in fines.

“T.E.” is a permanent resident and obtained her green card by marrying her employer’s brother who is suffering from diabetes and dementia and required extensive care. The employer couple is also charged with immigration violations.

The case of T.E. is a classic case of human trafficking. The Department of Justice has heightened its efforts to locate victims of human trafficking and prosecute perpetrators.

Undocumented Domestic Workers

Aside from the US Department of Justice, the U.S. Department of Homeland Security also announced its change of policy for the protection of abused domestic workers of diplomats.

Diplomats, consular officers, foreign government offices and international organizations are allowed to apply visas for their domestic workers. They are issued either A3 or G5 visas. In cases where the employer threatens the domestic workers who claim abuses and are threatened with deportation, these workers may avail of a relief of “deferred action”. Depending on the circumstances of their case, they may also avail of the nonimmigrant “T” visa.

Considering that most of the domestic helpers are strangers to their new environment, they oftentimes find it difficult to assert their rights and bear all the hardships they face.

Unlike in the case of private employers such as the Maryland couple, a domestic helper of a diplomat usually does not have redress against his employer. Diplomats are immune from criminal, civil and administrative suits from all courts of the United States and its states under the Vienna Convention on Diplomatic Relations. This is what actually happened in the 2008 case of Marichu Baoanan who claimed abuse in the hands of her employer, then Philippine Ambassador Baja, who was relieved of liability under diplomatic immunity, among other reasons. The federal lawsuit against the ambassador did not prosper.

Domestic helpers of foreign representatives in the United States may find it difficult, if not legally impossible, to file lawsuits against their employers. Still they are  entitled to apply for the nonimmigrant “T” visa and assist in the federal authorities’ investigation. This visa will allow them to stay in United States while investigation is being conducted. There is also an opportunity to apply for an immigrant visa after a few years.

Asserting Rights of Victims of Human Trafficking

Domestic workers are a critical need for most families who can afford to have one. They take care of our homes, parents and children; and, are entitled to assert their basic workplace rights. Most employers treat their workers fairly. But for employers who are perpetrators of human trafficking and are abusive, government prosecutions are a reminder that domestic workers are entitled to protections. Just like any ordinary employee, domestic workers should not tolerate verbal, physical or emotional abuses.

What makes it more difficult for domestic workers is the threat to their immigration status in addition to their lack of familiarity with the English language and how the U.S. justice system works. Just like T.E., most of these workers are head of households and are supporting their families back home. Hence, when faced with an abusive employer, they should be encouraged to assert their rights especially now that the administration has changed its policies and provided relief to protect them from being removed from the United States. Availing of the “T” visa or deferred action may be a challenged but it is a solution that will may free them from abuse and uphold their human dignity.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

One who has violated the law should suffer the consequences of his actions. The victim of the offense should be compensated and the offender should be penalized.  But have you heard of a victim being equally penalized with the offender?

This is what happened to hundreds of Filipino teachers in Maryland.  The teachers were the victims of their employer’s regulation violations of the working visa program. Yet, these Filipino teachers are the ones suffering the consequences of those violations by the employer.

From 2005 until 2009, Filipino teachers were recruited to work for the Prince George County Public Schools (PGCPS) in Maryland. Most of these teachers paid more than $10,000 to the recruitment agency to cover recruitment costs which included, among others, cost for their working visas. Having successfully complied with all the requirements, these teachers arrived in the US and were able to work. Many who were recruited earlier had already been able to obtain their green cards. Unfortunately, others are still on their temporary working visas.

After an investigation, the U.S. Department of Labor came out with their findings against the employer penalizing the latter for failure to comply with wage requirements as well as various violations of the conditions of the visa issuance.  The employer and interested parties were given 15 days to appeal the decision dated April 4, 2011.  The employer did file an appeal; and, five teachers also filed their opposition to the findings.

On July 7, 2011 the Department of Labor issued a public statement informing the public that an ‘agreement’ was made where the employer agreed to reimburse all teachers for their back wages and cost of their visa petitions. The assessment was a total of  $4,222,146 in back wages for 1044 teachers.  Included in the agreement is a “debarment” against the employer to prohibit them from (1) filing new working visa petitions, (2) renewing visa petitions that are expiring; and (3) filing immigrant visa petitions for their employees.

As a result of the agreement, each teacher will receive approximately $4,000. Those teachers who already have their green cards are not concerned with the penalty of debarment. Unfortunately, many are still waiting for their green cards.  After teaching for several years, those who have not been approved for their green cards will now be terminated at the expiration of their work visas. Since the agreement was reached on July 7, 2011 termination letters have already been sent to those whose visas are expiring the months of July and August 2011. Unless there is a change of status, the affected teachers stand to lose their valid immigration status.

Debarment is a penalty imposed where the employer is barred from filing immigrant and nonimmigrant visa petitions if there are violations of H1B or labor certification program requirements. While debarment is intended by policy to punish the employer, it has an adverse effect on affected employees. This means that the employees must act quickly to find new employers, change to another nonimmigrant status or decide to leave the United States.

The visas for those teachers who are still nonimmigrant will eventually expire at a time certain. Hundreds of these H1B visa teachers will lose their status in the next two years.

While they entered as H1B visa holders, most of these teachers’ hope was to eventually become immigrants like their predecessors. Giving a finite date for them to leave and depriving them the opportunity to extend their visas or obtain the green card because of the debarment of an employer is an unfair result on the employees caused by the employer’s misdeeds. If the employer had not violated the H1B regulations and wage conditions, these teachers will not be facing the effects of debarment.  Hundreds of these teachers are now facing this distress.

Who deserves to be punished?

At the time when former President Bush signed the No Child Left Behind Law, highly qualified teachers were hired to work in critical areas of math, science and special education. In the Prince George County Public Schools (PGCPS) of Maryland, most of these outstanding teachers were recruited from the Philippines.

The recruiters from the Philippines earned their recruitment fees which amounted to no less than $10,000 per teacher. The PGCPS was able to support its No Child Left Behind Program by hiring qualified foreign nationals. Where there was a shortage of teachers, the recruited teachers filled up the positions and diligently practiced their professions both in non-critical and critical areas. The teachers got their visas for themselves and their families.  Unfortunately, with news of the DOL’s findings and the agreement reached between PGCPS and the DOL, the affected teachers were the sacrificial lambs and must go if their visas are expiring.

While each teacher is expecting to receive approximately $4,000 in back wages and reimbursements from the $4.3 million assessment against PGCPS, this money becomes insignificant compared to the loss of their US jobs.

Teachers Are Not Lawbreakers

The agreement reached between the DOL and the PGCPS appear not to have included the affected teachers during the negotiation. Instead of the agreement, hearing on the matter should have been conducted to prove that the acts of PGCPS did not amount to a “willful” violation warranting a debarment. At the very least, the teachers who have served the children of PGCPS for many years must be exempt from the ‘debarment’ and should be allowed the opportunity to renew their visas. If not, prosecutorial discretion on the part of the Department of Homeland Security must be favorably exercised. For after all the teachers are the victims and not the lawbreakers.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)