Missionary

By: Angela King

              Since my teenage years, I have had a desire to become a missionary.  After many years of inquiries, conferences and applications, the opportunity finally presented itself in August of 2011 and I was off to Managua, Nicaragua, the second poorest nation in the World.

             Then, in January of 2012, my second missionary trip was to Carrefour, Haiti -- only two years after it had experienced one of the most devastating earthquakes in history. 
              Haiti, one of the poorest nations in the world, even after two years, had the look of a place which had just been affected by the earthquake.  We were housed in an earthquake affected facility which overlooked one of the larger “Tent Villages” there.   Our mission was to complete two two-bed room family residences which would eventually house a minimum of six people each.  We visited places of worship as well as a home for young girls and another one for young boys, most of whom had lost their parents in the earthquake.  There were many disheartening stories of death from the earthquake. The daily exposure to the level of poverty and the conditions in which humans exist was very traumatic for me and makes me more appreciative of what I have.

            My name is Angela King. I reside in Plainfield, New Jersey but I am from the island of Jamaica.

           This is the story of my most recent missionary trip to Nicaragua.  It is August 2012 and the time is fast approaching for my departure on the 17^th.  I had accumulated quite a few items from donations for the children of Nicaragua.  I spent the night of the 16^th packing until 2am, taping and labeling four storage totes with these donations.

             I was off to the airport at 3:00pm with the four totes, one carry case of art pencils and crayons, one piece of personal luggage, my laptop and my pocket book.  My flight departure time was 4:59pm.

             I arrived at the airport, unloaded my luggage, said goodbye to Reverend Jennings who transported me and waited for a Red Cap. Due to a luggage issue with a passenger ahead of me, my wait on line for the one agent on duty was approximately forty minutes.  It’s now 4:20pm.

             I gave the agent my documentation and showed her my luggage.  It is at this time she informs me that there is an embargo in Nicaragua and I am only allowed two pieces of checked luggage.  After much protest to no avail, and because nothing can be disposed of at the airport, I inquired of changing my flight so I can take the items back home.  I was given a cost of over one thousand dollars.  “Are you people crazy?” was the only thing I could say.  She informs me that I must check my two pieces or I cannot check anything.

            So here I am at 4:35pm, flight boarding and almost in tears.  I grabbed my personal bag and one tote, gave them to her and paid the fee which she told me would be the total cost to Nicaragua.  With my head still spinning, I remembered that my girlfriend LaWana works just outside the airport but it’s Friday and she is not usually at work that late.  I took a chance and called.  No answer.  In total panic I called her husband Samad who got a hold of her. She is still at work!

             She races to the terminal as I hear the final boarding call for my flight.  I see her coming.  I leave the totes on the curb, grab my laptop, pocket book and the carry case of crayons and head for the security checkpoint, still hearing the final boarding call.

            The line is snaked around several rows.  I find a TSA agent and let her know that my flight is completing its boarding.  She tells me I am only allowed two pieces of carry-on luggage and I have three.  “What?” I inquired as to where I can dispose of the case of crayons.  “You cannot,” she advises.  Not at the airport. She says I have to get my laptop into my pocket book and with the case of crayons that will be two pieces. Get my laptop (which is in a case) into my pocketbook?  Either all these folks have lost their minds or I am in a really bad episode of “The Twilight Zone.”

             I still believe God got that laptop into my pocket book.  She put me at the front of the line with my two pieces of carry-on. By now they are calling my name to board the flight. The other agent is still checking my boarding pass and passport.   I yelled, “that is my name they are calling” and another passenger put me in front of her.  I unloaded all the items I just stuffed into my pocket book for security screening.  I ran through the x-ray machine (still being paged), I grabbed everything and with pants falling down, stuffed everything under my arm and ran for gate C34 while yelling “out of my way” all the way there.

              The agent asks “who are you?” I could only stab at the paper he was holding.  “Ok you made it,” he says.  “Are my pants down?” I inquired of a fellow passenger, “no they are still up,” she said.  It sure didn’t feel like it. I thanked her and sat down for the first leg of my flight.

              I arrived in Miami and decided to double check with an agent about the fee I paid in Newark which should have taken my luggage to Nicaragua the next day.  She took one look at my receipt and said “they did it wrong.” “Wrong?” I inquired.  “Yes, they booked you with Miami as your final destination.”

              Seeing the look of utter disbelief on my face, she said, “bring your receipt in the morning and tell the agent what you just told me, maybe they will be able to do something for you.”

              I was tired and just could not deal with anything else at this point so I found a hotel for my overnight stay and got picked up by the shuttle.  After grabbing a bite to eat, I finally got to my room. Lying down never felt so good!

             The next day, I dressed, packed and went to the hotel lobby to await the airport shuttle.  A few minutes later, I received a call from the airline that my flight was being delayed one hour.  I decided to go ahead and take the shuttle and wait at the airport.   As I entered the terminal an agent asked where I was going.  I told him Nicaragua.  He said “you can’t take that.”  “Can’t take what?” I inquired.  “The tote,” he said. “There is an embargo and it is considered a box.”  “You have got to be kidding. Why was I not told that in New Jersey so I could have sent everything back home?”  A shrug of the shoulder was all I got.

            “So what can I do with it?” “You can purchase a bag, put the items in it and dispose of the tub,” he advised.  “Where can I get a bag?”  “There is a store around the corner.”

          I found the store and relayed my story to the clerk who thoroughly enjoyed my dilemma thus far.  I found a large bag which was on sale (I could not have afforded one otherwise) and still frustrated, stuffed the entire tote in it along with the case of crayons.  I now had two pieces of luggage.

          I walked back to the airline counter, found an agent, who took my bags after I told her my story without any additional charges.

          Our flight arrived in Nicaragua without incident. We cleared customs.  When the buses arrived most of our luggage had to be loaded on the roof racks and yes you guessed it; it rained so we arrived at The Villa Esperanza with soaked luggage.

          The Villa Esperanza (Village of Hope) is the realized vision of Gloria and Wilbert Sequeira. Along with Forward Edge International, The Villa houses at-risk girls who are rescued from a life of prostitution and are given the chance to grow up and live a normal life.  The Villa also hosts visiting missionaries who help the young girls mature through adulthood.

          Along with our mission to spread the word of God, our purpose on this trip was to complete the multi-purpose center in Christo Rey and build homes for the needy. 

          Christo Rey (Christ Came) was named by the villagers after they were put on this undeveloped land and left to make it on their own.  The missions to Christo Rey are usually geared towards building homes for the Villagers whose shelter is normally constructed of plastic, cardboard and posts made from locally harvested trees. 

          We worked in Christo Rey for five days and accomplished all we had planned for this Mission.  Four homes were completed, the multi-use center along with a kitchen and bathroom were 95% completed. 

           And so after our time of fun with the girls at The Villa, it was time to return home.  Because our flight was early on Sunday morning, we left The Villa on Saturday to stay at the hotel directly across from the airport.  Upon arriving at the hotel, we were given the news that all flights to Miami were cancelled until further notice due to the onset of hurricane Isaac.

           The men returned with news from the airline that the earliest flight we could get out of Nicaragua was on Tuesday and it was not going to Miami.  The flight was scheduled for Guatemala, where we would get another flight to Houston, Texas, then another flight to Washington, D.C. our final stop! But we are going to New York, how will we get there?  We will rent vehicles and drive up, was the answer.  The men had already booked us out on the Tuesday flight.

            So we hung out at the hotel, each enjoying a mini vacation. Personally I needed the rest. On Tuesday we began our journey home from Nicaragua to Guatemala to Houston to DC. Rented two passenger vans and drove home. I was dropped off at Newark Airport at 3am on Wednesday. I got Reverend Jennings out of bed to come and take me home.

            I will be returning to Nicaragua in December ….. you gotta love this mission work!

My Internship in Beijing

Jessika Wong ‘14

     

      Last summer, I interned in Beijing, China with a tax practice group of a large international law firm. Since I had only worked for a solo practitioner in New York City prior to law school, I was excited to have this opportunity to experience working at one of the largest international law firms.

      The firm I supported has a diverse array of practice areas spread across different offices that vary in size. The tax practice group with which I worked is one of the newer and smaller practice groups in the firm’s Beijing office. The Beijing tax group also works closely with the tax practice group in the Shanghai office. By comparison, the intellectual property group, which focuses on trademarks, is the largest practice group.

       Both American and Chinese law students have interned with the firm’s Beijing office. However, I was the only American law student in the Beijing tax practice group. Summer recess for the local Chinese law students typically extends from July through September; since my internship program ran from May to June, the three other American law school students and I mingled with more than ten Chinese legal externs who were completing the final semester of their undergraduate legal studies. In the People’s Republic of China (PRC), university students who major in law become qualified attorneys upon having passed the PRC’s National Judicial Examination (guojia sifa kaoshi).[1] However, since foreign international law firms—generally, firms whose headquarters are outside of the PRC— are not allowed to hire lawyers with an active PRC legal license, Chinese law students employed by such firms are typically encouraged to pursue qualification in another legal jurisdiction outside the PRC.[2]
   

       It is unconventional for a foreign international law firm to have a tax practice group. Most international law firms with offices in China do not have tax practice groups because the “Big Four” accounting firms (Deloitte, Ernst & Young, KPMG, and PricewaterhouseCoopers) dominate in the area of taxation. In addition, local PRC law firms provide legal services for nearly all local tax issues, which further limits the local tax client market of international law firms.

       Tax clients generally hire lawyers of large international law firms to advise on complex issues arising from international or multi-national transactions. Such transactions may include anticipating and minimizing the tax consequences – both costs and concerns – for acquiring a targeted business in China, and drafting tax risks and potential areas of dispute for share/asset transfer agreements. The practice of our firm’s Beijing tax group also provided tax-planning advice, such as advising a multinational enterprise on the tax consequences of having a representative office in the PRC.

        My internship focused on PRC tax law. Tax law in the PRC is not as complex as the United States tax code, and is still being developed. While the National People’s Congress (NPC) enacts basic tax laws, the Ministry of Finance (MOF) and the State Administration of Taxation (SAT) are responsible for tax policy and issuing regulatory rules. The SAT also administers and collects taxes. Both the MOF and SAT issue Circulars, which are supplemental interpretations of tax regulations intended to help implement the basic tax laws promulgated by the NPC. The SAT and the MOF have been delegated the power to interpret tax law and as such, their rulings and Circulars are binding upon tax authorities.[3] Most of the research I conducted during my internship involved reading these Circulars. Our firm published tax newsletters to explain new Circulars and their predicted effect upon international corporate clients.

        As a native English speaker, much of my work involved editing these tax newsletters. I met with the firm’s legal editor on staff, whose job involves helping non-native English speakers to improve their grammar. After showing me examples of a variety of memos, the legal editor taught me about which methods for organizing legal writing were the most effective. The foundational principles were the same as those I learned in legal writing class in the United States; however, the writing style mimicked the Queen’s English from the United Kingdom.

        My internship further encouraged me to develop language skills in another Chinese dialect in addition to honing my legal writing skills. At home and with my family I grew up speaking Cantonese—a dialect spoken mostly in Southern China and Hong Kong—and I provided medical interpretation for Cantonese patients when I worked at a New York City hospital before starting law school. While well-versed in Cantonese, the main dialect spoken in Beijing is Mandarin. So, in my free time, I met with a tutor to become more conversant in Mandarin. In the PRC, I found that the Beijing tax practice group relied heavily on regulations written in simplified Chinese, while other practice areas may be more English based.

        One of the biggest advantages of working at an international law firm was learning about how they nurture their associates and interns. In addition to attending weekly meetings of the Beijing tax practice group, I attended numerous training sessions pertaining to all the areas of law for which the Beijing office had a practice group. Each week, a partner from a different practice group would conduct a seminar on the basic laws of their specialty and talk about recent issues within their field. Since I am still undecided as to which legal specialty I would most like to pursue, these seminars provided a wonderful opportunity for me to explore areas as diverse as intellectual property, litigation, corporate and transactional, and securities. For example, the litigation seminar, which I attended was dedicated to the PRC legal. These seminars would be held via video conference across all of the firm’s offices in Asia (Hong Kong, Shanghai, and Vietnam).

         I was extremely lucky to have this chance to intern abroad in China after my first year. I highly recommend interning internationally, even if the internship may not be in the precise field of law in which you are most interested. As my opportunity proved for me, international summer internships can yield an unparalleled vantage point into what it is like to live in a different country, to speak its language, and most of all, to learn about how to operate within its legal system.

[1] Carl F. Minzner, China’s Turn Against Law, 59 Am. J. Comp. L. 935 (2011).
[2] Mark A. Cohen, International Law Firms in China: Market Access ad Ethical Risks, 80 Fordham L. Rev. 2569 (2012).
[3] Deloitte China Master Tax Guide 2011/12.

Internship at U.S. Customs and Border Protection

Elizabeth Shingler '13

            As an intern at the Associate Chief Counsel’s Office of U.S. Customs and Border Protection (“CBP”), I have been exposed to an array of issues, far exceeding what I had anticipated.  The attorneys who work for the Associate Chief Counsel’s Office appropriately describe themselves as “generalists” as opposed to the “specialists” who work at Headquarters in Washington, D.C., who focus strictly on particular aspects of customs and immigration laws. 

Employment law cases comprise the majority of the work at the Associate Chief Counsel’s Office. Most of these cases involve claims of Title VII violations, relating to discrimination or agency reprisal against an employee.  From what I have observed, although the facts of these cases are usually straightforward, they can be time consuming and emotionally-charged for the employee. 

Following employment law issues, immigration issues are another large component of the office’s work.  Upon entering the country, an immigration officer determines whether a person is admissible to the United States.  An alien may not be admissible for a variety of reasons, such as a prior crime involving moral turpitude.  In such cases, a Notice to Appear will be issued requiring the person to appear in court to determine whether he may stay in the United States.  The office becomes involved because the attorneys review the file to ensure there is adequate and appropriate information to proceed with the government’s case.  As I have not taken any immigration law courses and do not have a background in immigration law, I have found it to be highly complicated and difficult to understand.

CBP attorneys are also involved in seizure related issues, arising from seizures of prohibited items at the border and Immigration and Customs Enforcement’s (ICE) seizures. ICE is CBP’s sister agency; both fall under the Department of Homeland Security (DHS) umbrella.  As such, when ICE officers make seizures (often this involves seizing either a vehicle or money), CBP is responsible for reviewing the seizure and issuing notices to the owners explaining their legal options.  In these cases, the owners may abandon the property, have an administrative hearing, or proceed in court.  I have had some exposure to these cases and have found them to require you to be highly organized in order to stay on top of each proceeding.

Of course, the attorneys also enforce customs law, an area of personal interest. Although much of the technical work is performed in Washington D.C., the office in New York handles violation cases.  Customs laws are found in Title 19 of the United States Code and I have been fortunate enough to be involved in cases where the importer either did not properly classify the goods thereby altering the duty amount that is to be paid on the goods or the importer has protested the duty that was assessed on his goods. I found these internship opportunities to be a great way to gain hands-on experience and to understand how the law is applied. They also involve multiple offices, such as Audit and Fines, and Penalties and Forfeitures to determine when and how a violation has occurred.

The variety of the work at the Associate Chief Counsel’s Office has made each day interesting and has furthered my knowledge in a variety of areas. Additionally, the attorneys have always been willing to answer my questions or discuss a complicated question, while giving me the freedom to research and address issues as I see fit. My internship at CBP has been a rewarding experience and one I would recommend to others.

The New York City Bar Association Discusses International Trademark Issues

By Jennifer Johnson ‘13

            On October 16, 2012, the New York City Bar Association hosted a panel event entitled “Brands Abroad: International Trademark Issues Facing In-House Counsel and Those Who Advise Them.”  As someone interested in the intersection of international law and intellectual property, I was eager to attend.  The impressive panel featured three attorneys: John M. Bergin, Chief Trademark & Copyright Counsel at Avon Products, Inc., Clark W. Lackert, Partner at Dickstein Shapiro, LLP, and Doreen L. Costa, Partner at Baker Botts, LLP. 

            To start off the panel, Mr. Bergin began with some remarkable facts about Avon Products, Inc.  He told the audience that Avon has over 45,000 trademarks registered throughout the world and that one attorney and four managers handle all the clearance, applications, and maintenance associated with those trademarks.  He explained that trademarks should be viewed as an asset or investment rather than an unnecessary expense.  Undoubtedly, many other companies view trademarks in the same light as the numbers of trademark applications and registrations have drastically increased in the last few years.[1]  With these unprecedented numbers, it can be challenging to search and clear new marks.  An interesting concern that he also pointed out is that when the marketing department is suggesting names for a new brand, it is not uncommon that a particular name may not work in certain countries due to cultural differences (e.g. it does not translate well, means something distasteful, or lacks the intended pizazz).  In a global economy and social media age, it is important to appeal to consumers around the world.  Additionally, Avon’s brochures are harmonized so if the company is unable to obtain a mark in one country because it does not work or is blocked, it will have to come up with a different mark that is usable worldwide. 

The panelists went on to discuss the process of clearing a trademark and explained the “likelihood of confusion” standard that is used in trademark law.  When choosing a mark that will not be confused with an existing mark, one needs to consider the strength of the mark (including its distinctiveness or fame[2]), the similarity between marks, the quality of the products, the competitive proximity of the products, and the sophistication of the customers.  When conducting searches, it is helpful to do an online “quick and dirty” search, but then you also should have a trademark agent conduct a full search. 

The panelists explained that there is no such thing as a world trademark; trademark rights are territorial by nature.  This makes it essential to create a network of reliable local counsel in every country with whom you can work.  While it is important to consider their advice, attorneys need to also use their own independent judgment to make final decisions.  Another word of caution is that these overseas trademark agents typically are not attorneys and under many local laws there is little to no attorney-client privilege.[3]  The granting of rights that come with trademark ownership also varies from country to country.  In commonwealth countries like the United Kingdom, these rights are given through use, whereas in civil law countries like Japan, China, and Germany, these rights are given through registration which makes it all the more necessary to register one’s trademark in these countries in order to avoid piracy.[4]  As Baker Botts’ co-panelist, Ms. Costa, commented, it is always cheaper to register for a mark in the first place than subsequently having to buy a mark from another party because you did not act first.

Usually marks are filed regionally such as through groups like the Organisation Africaine de la Propriété Intellectuelle (“African Union” or “OAPI”) and the European Community Trademark (“CTM”). Similarly, for countries that have signed on to the Madrid Protocol, like the OAPI or CTM, it offers trademark owners a way of obtaining a trademark registration that covers multiple countries.  In other words, under all these systems, the process is greatly streamlined by only requiring a single fee,[5] one renewal fee,[6] and filing in just one language.  This route is especially recommended for registrants that do not have local agents.  However, a registrant needs to know that there are several differences between the Madrid System and these other regional trademark schemes.  For example, under the CTM, a registrant is not required to maintain a commercial establishment in the EU, but a Madrid registrant must be a national or domiciled in one of the member countries of the Protocol.  Also, if registering under the CTM, the registrant must register under all included countries, whereas under the Madrid Protocol, the registrant is free to pick and choose among member nations which countries in which it wants to register.  Another difference is that under the Madrid Protocol, the registrant will still have to meet the individual countries’ requirements which can be quite rigid, but under the CTM, an application can only be refused on absolute grounds.[7]       

Once a trademark is registered, it is vital that the owner be vigilant in policing the mark so its goods and services do not become a target for counterfeiting.  There are many treaties that govern the enforcement of trademark protection.  These include the Paris Convention (1883), the Madrid Treaty on False Designations (1891), the Pan American Convention (1925), the Lisbon Treaty (1958), the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”) (1994), and the Anti-Counterfeiting Trade Agreement (2010 draft).  Ms. Costa spoke about the importance of getting law enforcement authorities and the United States Customs and Border Protection involved so as to work closely with trademark registrants, especially when there is an expected illegal shipment.  Often counterfeit products are made by “second shift” workers who work in factories making the legitimate products and then, with the access they have to the materials, create counterfeit goods after their shift ends.  However, when conducting investigations overseas, one must be aware of espionage laws as some countries require investigations to be run exclusively by the government and not private citizens.    

The panelists ended the discussion with an overview of social media and the added complexities of trademarking and brand protection with the proliferation of the Internet.  Overall, it was a very informative presentation.  It reminded me that, as with most areas of international law, there is a delicate balance that must be achieved between globalization and harmonization of laws and respecting individual countries’ desires to make their own political decisions of how to implement and enforce domestic law.        Therefore, attorneys in the United States must do what they can to properly search, register, and police trademarks abroad, while being mindful of potential pitfalls like confidentiality concerns, country-specific trademark requirements, and domestic espionage laws.  Also, even as trade and commerce becomes international, allowing companies to reach a larger consumer base, there will remain cultural differences that impact and complicate decisions companies make (such as choosing a brand name) and companies must be sensitive to that.

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[1].  Worldwide trademark applications grew from 2.3 million to 3.3 million from 2002 to 2007 and worldwide trademark registrations grew from 1.7 million to 2.2 million from 2002 to 2007.  The U.S. Patent and Trademark Office alone sees over 250,000 filings each year.  To give perspective on this, Mr. Bergin highlighted the fact that there are only 200,000 words in an average English dictionary. 

[2].  When it comes to relying on fame, it can be difficult to prove and the public knowledge of your mark must be local (not just general or by means of the internet).  

[3]. In countries such as Germany and Belgium, the privilege often ends with the attorney opinion letter and search report itself.  In countries such as Italy, France, and Sweden, there is no attorney-client privilege between in-house counsel and business associates. 

[4].  Not only does registration provide notice, but it is usually necessary for combating counterfeiting and for customs records.  

[5].  The fee is $19,000 for one good per class for registration in the 84 Madrid Protocol countries.  If the registrant had to make individual filings, the cost would escalate to $160,000.

[6].  Trademarks usually must be renewed every ten years.  Under the Madrid Protocol, if the registration in the home country fails during the first five years, then the international registration will also become invalid.  However, if there is no issue in the first five years, then the international registration becomes independent.  In contrast, a registration with the CTM will be independent of any other application or registration from day one.  

[7].  This list of differences between the CTM and Madrid Protocol is not meant to be exhaustive.  

Migrant Workers: Echoes of Modern Day Slavery

Kenya Dillon ‘14

            Migrant workers around the world are in garment factories sewing clothing to be sold in stores around the world. They are behind the scenes of hotels and financial conference centers in Dubai. They are construction workers in Qatar, building the 2022 World Cup facilities. On boats in seas across Southeast Asia, they are supplying our markets with fish. They are domestic workers who leave their homes and families for the households of employers across Europe. These are the migrant workers of the world.

            You see their faces in fields across America; bandanas and hats shield them from the hot sun as they harvest vegetables and fruits to fill grocery stores and feed the American population. They are changing the sheets in hotel rooms, bussing tables and cooking in restaurants. They are camp counselors, and nannies pushing children in strollers through the park. They are selling wristbands and operating carnival rides. They are computer programmers filling the offices of Silicon Valley. These are the migrant workers of America.

             A dearth of economic opportunity in their home countries drives migrant workers abroad in search of work. While some migrant workers are able to earn a livable wage, the majority of migrant workers experience something vastly different. The U.S. Department of State has cataloged the exploitation of migrant workers worldwide as “forced labor” and “a form of modern day slavery” in the 2012 Trafficking in Person’s Report.[1] As many reports have documented, migrant workers are utilized as a cheap and exploitable workforce.[2] Forced labor “…encompasses the range of activities – recruiting, harboring, transporting, providing, or obtaining – involved when a person uses force or physical threats, psychological coercion, abuse of the legal process, deception or other coercive means to compel someone to work…”[3]

             Currently, the U.S. has sixteen temporary visa work or “guestworker” programs[4], which are overseen by the Departments of Labor, Homeland Security, and State. In the summer of 2012, I conducted a detailed study of the U.S. temporary worker programs. I found that these work visa programs form an intricate web of U.S. labor law, administrative law, and immigration law. What I discovered in researching the temporary work programs was appalling. The forced labor endured by migrant workers has been recently characterized as a form of modern day slavery.[5]

The most prominent temporary work visa program is the H-2 temporary foreign worker program, a result of the Immigration and Nationality Act (INA) of 1952.[6] The H-2 program encompasses both the H-2A and the H-2B temporary work visa programs. The H-2A work visa program is for seasonal agricultural work and the H-2B visa program authorizes U.S. employers to bring guest workers to the U.S. to fill temporary, seasonal, or peak load nonagricultural jobs.[7] H-2A visas are usually valid for less than one year, and can be extended for up to 12 months.^[8] U.S. Citizenship and Immigration Services usually does not authorize an H-2B visa for longer than one year, with the possibility of one-year extensions.[9]

            In 2012, the Department of Labor certified 62,743 H-2A positions and 63,724 H-2B positions.[10] The top five H-2A positions were for work with Valencia Orange crops, in farm worker positions, peach crops, tobacco crops, and lettuce crops.[11] The top five positions certified for H-2B workers were for positions as a laborer or landscaper, forest worker, amusement park worker, cleaner, housekeeper, and industrial or commercial groundskeeper.[12]

            Migrant workers search for work outside of their country of origin and recruiters and agents operating in the workers’ home countries waste no effort in manipulating and capitalizing on their desperation. Recruiters deceive workers into thinking that they must pay fees directly to the recruiter in order to secure work in the U.S.; this is a purely fraudulent practice.[13] Recruiters prey on foreign workers desperate for work and income by charging the workers manifestly excessive fees. These exorbitant fees include inflated costs, causing workers to arrive in the U.S. deeply in debt. It is not uncommon for workers to mortgage their property and homes in order to pay these fraudulent fees. Yet, in fact, recruiter fees are banned under U.S. regulations. U.S. government agencies maintain fixed rates for visa application fees. Unfortunately, it is nearly impossible for the U.S. federal agencies to monitor the activities of foreign recruiters, because the abuse is so widespread. Moreover, the fact that recruiters operate abroad seriously impedes the ability of U.S. monitors to enforce the regulations. The exploitation of vulnerable migrant workers has become a profitable engagement:

Given the paucity of effective international norms on labor migration, the exploitation of workers is growing at an alarming rate. Recruiters, labor brokers, sponsors, and employers have found that they can abuse migrants. With little risks and huge financial rewards, labor recruitment fraud often earns a guilty party little more than a fine (in the few countries that criminalize it). The practice of deceiving migrants into traveling abroad for work – including the prevalent requirement of large recruitment fees – is a high-profit form of exploitation in many major labor sending countries. In its 2009 study titled Cost of Coercion, the [International Labor Organization] estimated that up to $20 billion can be extorted annually from these workers worldwide.[14]

            The exploitation does not end with the visa application and entry process. The flaws in the visa programs are exascerbated by the fact that once workers are in the U.S., they are bound to maintain exclusive employment with the employer listed in their visa application and registered with the U.S. federal agencies. To the worker’s detriment, the visa does not operate as a general license to seek U.S. employment. Even if they are experiencing exploitation or abuse, under the H-2A and H-2B programs migrant workers are not able to change jobs to work for new employers. As a result, unscrupulous employers take advantage of the legal and financial dependence of migrant workers. After workers have acquired such high debt during the entry process, they rely heavily on the opportunity to make U.S. wages that can only be provided by their listed employer.

            The most common form of exploitation is in labor and wages. Often migrant workers are forced to work long hours and are paid unreasonably low wages, usually less than minimum wage, in violation of the program’s rules.[15] This is due not only to flaws in the program regulations, but is attributable to a lack of enforcement as well. When it comes to protections for workers the mandates on paper are not typically adhered to in practice.[16] Regulations require that H-2A workers must be paid at least the highest of the following: the adverse effect wage rate (AEWR); the prevailing wage; the prevailing piece rate; the agreed-upon collective bargaining wage; or the federal or state minimum wage.[17] H-2B employers must pay throughout the approved employment period a wage that is equal to or is above the highest wage out of the prevailing wage, applicable federal minimum wage, or the state minimum wage.[18] Wages cannot be based on commissions, bonuses, or other incentives unless the worker is guaranteed to receive a regularly paid wage that equals or is above the prevailing wage, the federal minimum wage, or the state or local minimum wage.[19] While these guarantees seemingly ensure an equitable exchange of labor for wages, the practical reality is less than convincing. The 2012 Trafficking in Persons Report prepared by the U.S. Department of State describes the situation common to many migrant workers.

                        For a Guatemalan, the cost of a job could include becoming an undocumented worker in the United States when he or she is forced by traffickers to perform labor that is not covered by the visa provided by his or her labor broker. He or she would then have to repay the broker and travel fees, all while working nearly 80 hours a week for less than minimum wage.[20]  

            In addition to the abuse resulting from the meager pay and long hours, there have been reports of women suffering rape and sexual abuse at the hands of their employers.[21] If workers speak out or complain about the abuse, they risk deportation, blacklisting, and retaliation by employers. Again, recruiters deprive workers of their rights by manipulating workers’ understandings of their available protections pursuant to U.S. law. According to the Department of State’s 2011 Trafficking in Persons Report:

            Recruiters discouraged former workers from reporting labor violations, claiming that U.S. embassies or consulates would not grant future visas for those who complain –assertions that are false and contrary to U.S. law. Workers also feared seeking assistance because of blacklisting and other retaliation against workers who complain about their conditions. ^[22]

            These common abuses continue to occur because of the looming threat of deportation that holds the workers under their employer’s thumb. Because workers are licensed only to work for the particular employer in their visa application, once an employer fires the worker and informs government agencies that the worker has violated their visa contract, the worker becomes eligible for deportation.[23]

            In addition to the financial and legal dependence that migrant workers are confronted with when coming to the U.S. on an H-2A or H-2B visa, the abuse takes many forms such as: a lack of medical treatment, discrimination, degradation, poor housing facilities, and purposeful isolation. The combined effect of the threat of deportation and legal and financial dependence on their employers prevents migrant workers from turning to law enforcement for help. Community service and non-profit programs exist, but it is difficult to inform migrant workers of the assistance available. Abusive employers work hard to keep their migrant workers isolated and afraid of both law enforcement and outside organizations. Any migrant worker lucky enough to learn of the assistance available and who is not restrained by fear, often has to seek help secretively.

            Legal remedies do exist for migrant workers in the U.S., but they vary from program to program. Migrant workers are largely dependent on the government to enforce their rights. For instance, agricultural workers under the H-2A program are not covered by the Migrant and Seasonal Agricultural Protection Act (MSPA), but are protected by the Fair Labor Standards Act (FLSA), enforced by the U.S. Department of Labor, and the Immigration and Nationality Act.[24] Additionally, although agricultural work is routinely documented as among the most dangerous jobs in the U.S., many farms are exempt from Occupational Safety and Health Administration inspections.[25] H-2B program workers are covered by the Fair Labor Standards Act.[26]

             Unlike H-2A workers, H-2B workers are not permitted to access federally funded legal services.[27] With limited financial resources, they are restricted to obtaining either private pro bono legal assistance or dependent upon non-profit legal service providers.[28] While several cases, especially class actions, have been successfully litigated, migrant workers face many barriers in utilizing the judicial system to enforce their rights.[29] More often than not, before a case can be brought, the migrant worker’s visa has expired and they must return to their home country. Luckily, non-profit legal service providers have found ways to overcome this challenge with transnational litigation techniques in which U.S. attorneys work with migrant workers via the internet, teleconferencing, email, and video depositions to facilitate legal claims.

             Although not all employers exploit migrant workers, the occurrences of exploitation are too widespread to be deemed incidental. While the U.S. temporary foreign work programs provide foreign workers with an income unavailable in their home countries, they should not act to facilitate the human rights abuses and labor law violations. In 2012, the U.S. Departments of Labor, State, and Homeland Security recognized the need to tighten the program regulations and step up enforcement.[30]

            The U.S. Government’s recognition of the need for increased regulation and change begs the question of whether the International Convention on Migrant Workers might be a good steering mechanism to eradicate modern day slavery and forced labor in our economy. The Preamble of the Convention on Migrant Workers identifies the gravity of the issues faced by migrant workers and the importance of internationally recognized principles in this area.

…Aware of the impact of the flows of migrant workers on States and people concerned, and desiring to establish norms which may contribute to the harmonization of the attitudes of States through the acceptance of basic principles concerning the treatment of migrant workers and members of their families…Considering the situation of vulnerability in which migrant workers and members of their families frequently-find themselves owing, among other things, to their absence from their State of origin and to the difficulties they may encounter arising from their presence in the State of employment, Convinced that the rights of migrant workers and members of their families have not been sufficiently recognized everywhere and therefore require appropriate international protection… Convinced, therefore, of the need to bring about the international protection of the rights of all migrant workers and members of their families, reaffirming and establishing basic norms in a comprehensive convention which could be applied universally…[31]

        The International Convention on Migrant Workers provides the safeguards necessary to prevent the continued exploitation of migrant workers and ratifying the convention would be a suitable beginning for the U.S. in addressing the human rights violations occurring under its own temporary work programs. Recent news developments regarding abuses occurring on U.S. soil and committed by U.S. businesses overseas have further illustrated that it is imperative that the U.S. join the international community’s effort to protect migrant workers.[32]

---

[1] U.S. Dep’t of State, Trafficking in Persons Report, at 1 (2012), available at http://www.state.gov/documents/organization/192587.pdf.

[2] See generally U.S. Dep’t of State, Trafficking in Persons Report, (2012), available at http://www.state.gov/documents/organization/192587.pdf; Mary Bauer, Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States (2007), available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.

[3] U.S. Dep’t of State, Trafficking in Persons Report, at 33 (2012), available at http://www.state.gov/documents/organization/192587.pdf.

[4] For a description of each program see U.S. Dep’t of State, Temporary Workers, http://travel.state.gov/visa/temp/types/types_1275.html.

[5] U.S. Dep’t of State, Trafficking in Persons Report, at 13 (2012), available at http://www.state.gov/documents/organization/192587.pdf (“The old way of slavery was that the boss really owned you…But now legal recruiters and employers work in tandem to deceive workers who, vulnerable and isolated in a strange culture, are forced to accept harsh terms. It is in that context that you have endemic forced labor today.”).

[6] Immigration and Nationality Act of June 27, 1952, ch. 477, codified at 8 U.S.C.§1101 et seq.

[7] U.S. Dep’t of Labor, Employment and Training Administration, Foreign Labor Certification, H -2B Certification for Temporary Non-Agricultural Work, (June 2012), http://www.foreignlaborcert.doleta.gov/h-2b.cfm.

[8] U.S. Dep’t Homeland Security, U.S. Citizenship and Immigration Services, H-2A Temporary Agricultural Workers, (January 17, 2012), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=889f0b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=889f0b89284a3210VgnVCM100000b92ca60aRCRD.

[9] 8 C.F.R. §214.2(h)(6)(ii)(B)(2012).

[10] U.S. Dep’t of Labor, Employment and Training Administration, Office of Foreign Labor Certification, H-2A Temporary Agricultural Visa Program- Selected Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2a_select_statis_oct2011_may_2012.pdf (last visited Nov. 9, 2012); U.S. Dep’t of Labor, Employment and Training Administration, Office of Foreign Labor Certification, H-2B Temporary Non-Agricultural Visa Program- Selected Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2b_temp_non_agricultural_visa.pdf (last visited Nov. 9, 2012).

[11] U.S. Dep’t of Labor, Employment and Training Administration, Office of Foreign Labor Certification, H-2A Temporary Agricultural Visa Program- Selected Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2a_select_statis_oct2011_may_2012.pdf (last visited Nov. 9, 2012).

[12] U.S. Dep’t of Labor, Employment and Training Administration, Office of Foreign Labor Certification, H-2B Temporary Non-Agricultural Visa Program-Selected Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2b_temp_non_agricultural_visa.pdf (last visited Nov. 9, 2012).

[13] 20 C.F.R. § 655.15(a)(2012) (H-2B) (explaining that employers must file applications for foreign workers directly to the government agencies); and 20 C.F.R. § 655.130(a)(2012) (H-2A) (explaining that employers must file applications for foreign workers directly to the government agencies).

[14] U.S. Dep’t of State, Trafficking in Persons Report, at 23 (2012), available at http://www.state.gov/documents/organization/192587.pdf.

[15] Mary Bauer, Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States 18 (2007), available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.

[16] See generally Michael P. Tremoglie, OSHA Cites La. company for safety and wage violations, Legal Newsline, July 26, 2012, http://www.legalnewsline.com/news/236843-osha-cites-la.-company-for-safety-and-wage-violations.

[17] U.S. Dep’t of Labor, Adverse Effect Wages - Year 2012, (last visited Nov. 9, 2012) http://www.foreignlaborcert.doleta.gov/adverse.cfm.

[18] 20 C.F.R. § 655.22(e)(2011).

[19] 20 C.F.R § 655.22(g)(1)(2011).

[20] U.S. Dep’t of State, Trafficking in Persons Report, at 11 (2012), available at http://www.state.gov/documents/organization/192587.pdf.

[21] See generally Human Rights Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment (May 16, 2012), http://www.hrw.org/reports/2012/05/16/cultivating-fear-0.

^[22] U.S. Dep’t of State, Trafficking in Persons Report, at 378 (2011), available at http://www.state.gov/documents/organization/164458.pdf.

[23] Mary Bauer, Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States 15 (2007), available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.

[24] U.S. Dep’t of Labor, A Summary of the Major Laws of the Department of Labor, http://www.dol.gov/opa/aboutdol/lawsprog.htm#migrant (last visited Nov. 9, 2012); U.S. Dep’t of Labor, Employment Law Guide, Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas), (Sept. 2009), http://www.dol.gov/compliance/guide/taw.htm.

[25] U.S. Dep’t of Labor, Employment Law Guide, Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas), (Sept. 2009), http://www.dol.gov/compliance/guide/taw.htm; Internal Revenue Services, Foreign Agricultural Workers, (August 2, 2012), http://www.irs.gov/businesses/small/international/article/0,,id=96422,00.html.

[26] U.S. Dep’t of Labor, Employment Law Guide, Work Authorization for Non-U.S. Citizens: Temporary Nonagricultural Workers (H-2B Visas), (Sept. 2009), http://www.dol.gov/compliance/guide/tnw.htm#EmplRights.

[27] Mary Bauer, Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States 28 (2007), available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.

[28] Id.

[29] See generally Arriaga v. Florida Pacific Farms, LLP, 305 F.3d 1228, 1241-45 (11th Cir. 2002); James Gilbert, Migrant Workers Settle Lawsuit Against Monsanto, Yuma Sun, June 6, 2011, http://www.yumasun.com/articles/workers-70515-monsanto-lawsuit.html.

[30] For recent developments in new H-2B regulations see U.S. Dep’t of Labor, Wage and Hour Division, WHD Side-By-Side Comparison of the 2009 and 2012 Rules, (Feb. 2012), http://www.dol.gov/whd/immigration/H2BFinalRule/H2BSideBySide.htm; for examples of regulation enforcement see Michael P. Tremoglie, OSHA Cites La. Company for Safety and Wage Violations, Legal Newsline, July 26, 2012, http://www.legalnewsline.com/news/236843-osha-cites-la.-company-for-safety-and-wage-violations.

[31] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, U.N. Doc. A/RES/45/158 (Dec. 18, 1990).

[32] See generally Charles Kernaghan, Institute for Global Labour and Human Rights, Sexual Predators and Serial Rapists Run Wild at Wal-Mart Supplier in Jordan, (2007) http://www.globallabourrights.org/admin/reports/files/Content-Classic-0607-final.pdf; David Barboza and Charles Duhigg, China Contractor Again Faces Labor Issue on iPhones, N.Y. Times, Sept. 10, 2012, http://www.nytimes.com/2012/09/11/technology/foxconn-said-to-use-forced-student-labor-to-make-iphones.html?pagewanted=all&_r=0; Mark Fainaru-Wada and Justine Gubar, The Unseen Faces of Sports Apparel, ESPN, Jan. 9, 2012, http://espn.go.com/espn/otl/story/_/id/7435424/dallas-cowboys-dip-sports-apparel-business-comes-allegations-sweatshop-labor.