Dear Atty. Lou,
I arrived in the US in December 2009 using a working visa which I obtained through an agency in the Philippines. I signed a contract to work as a housekeeper for a hotel and I was asked to pay $4,000 by this agency. This does not include airfare and other miscellaneous costs. We were told that our salary would be $1,900 a month. I borrowed the $4,000 to pay this ‘agency’.
Upon arrival in the US, a representative of the agency brought us to the house of her friend. We were informed during our meeting that we are going to work as “caregivers”. There are 20 employees with working visas and we were each assigned to work as caregivers in different care homes. My salary is $1,100 with $200 to be deducted by the agency. I did not receive my salary for the first month because we were told that the first month is for our training as caregivers. My employer also deducted $500 for my fingerprinting. According to my employer, my salary shall be directly deposited to a bank account that will be opened in my name. I have no control over my bank account and I cannot even withdraw from this account to buy a phone card. I am also prevented from leaving the care home without permission from the agency.
My visa will expire in May 2010 and I want to find a new employer. If there will be a new employer who will file a petition on my behalf, will I be able to stay here legally? Did my employer breach the contract when we were asked to work as caregivers instead of housekeepers? Is there are a recourse to get the promised salary of $1,900 from the agency? Is the employer correct in controlling our finances and keeping our salaries? Will the employer file a lawsuit against us if we leave our current employment? What is our liability in case we are petitioned by another employer?
There are more than 20 employees who are victimized by this agency. May we report this agency to the Philippine Overseas Employment Agency (POEA) or to the US Department of Labor. Your immediate reply to our concerns will be greatly appreciated.
Worried Caregiver
Dear Worried Caregiver,
Based on the information you have provided, you appear to be holding an H2b visa or a temporary working visa for seasonal workers. Hotel workers or housekeepers fall under this category. The visa issued for these workers are for less than one year and are renewable for another year as long as your employer can prove the temporary nature of the job.
To respond to your question, if your visa is expiring in May 2010, you may want to find another employer who will be your petitioner for the extension of your visa. This will not be a breach of your contract on your part.
In regards to your question regarding your employer’s failure to comply with the terms of your contract of employment, you have the right to demand that you be paid according to your agreed compensation. It is obvious that your employer breached your contract in regards to the job offer, terms and conditions of employment. You may have a cause of action against your employer for breach of contract.
Your employer may potentially be committing acts constituting human trafficking. This is the 21st century slavery in which traffickers lure individuals with false promises of employment and a better life. You have to understand that you may not be forced to work against your will. Human trafficking cases involve the use of force, threats of force, or other forms of coercion to compel labor or services, including commercial sex acts, from victims. If you feel that you are being coerced to work, you may avail of immigration relief by filing for a T or U nonimmigrant visa. Your application must be supported by clear and convincing evidence that you are indeed a victim of human trafficking.
Last month, President Obama proclaimed January as National Slavery and Human Trafficking Prevention Month. The message being sent is for the public to educate themselves about all forms of modern slavery and the signs and consequences of human trafficking.
The US Department of Justice established a hotline to access assistance for those who are victims of human trafficking. You may want to call the National Human Trafficking Resource Center Hotline at 1-888-373-7888.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com
