Endnotes

1 This report uses “nonimmigrant visa programs” to refer to visas issued by the United States for individuals who wish to enter the U.S. on a temporary basis (see https://www.cbp.gov/ travel/international-visitors/visa-waiver-program/requirementsimmigrant-and-nonimmigrant-visas). Many of these nonimmigrant visa programs allow work; participants in these programs are commonly known as temporary foreign workers or “guestworkers.” Some advocates find the term “guestworker” an unacceptable euphemism for programs under which, in practice, many workers have been abused. However, “guestworker” is a term frequently employed by journalists and anti-trafficking advocates (see, for instance, American University Washington College of Law International Human Rights Law Clinic and Centro de los Derechos del Migrante, Picked Apart: The Hidden Struggles of Migrant Worker Women in the Maryland Crab Industry (2010); Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States (2013); and Polaris, Human Trafficking on Temporary Work Visas: A Data Analysis 2015-2017 (2018)). In alignment with common usage, this report therefore employs “temporary foreign worker” and “guestworker” interchangeably and refers to overall programs as “nonimmigrant work visa programs” “temporary foreign worker visa programs,” “temporary foreign worker programs,” and “guestworker programs,” also interchangeably.

2 Human Trafficking is a crime that involves exploiting a person for labor, services, or commercial sex. The Trafficking Victims Protection Act of 2000 and its subsequent reauthorizations define human trafficking as: a) Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or b) The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 22 U.S.C. § 7102(9); see generally 18 U.S. Code Chapter 77— Peonage, Slavery, and Trafficking in Persons, §§ 1581-97.

3 See Appendix A. For more information on the distinctions between nonimmigrant visas allowing work, please see Ashwini Sukthankar, Visas Inc., Global Workers Justice Alliance (now Justice in Motion), 2012, accessible at https://bit.ly/3gXAWFF. Visas, Inc. is one of the first attempts to describe the complicated and fragmented system that is the U.S. temporary foreign worker system.

4 Daniel Costa and Philip Martin, Coronavirus and farmworkers: Farm employment, safety issues, and the H-2A guestworker program, Economic Policy Institute (March 24, 2020), https:// www.epi.org/publication/coronavirus-and-farmworkers-h-2a/, Figure B; citing U.S. Department of Labor, Office of Foreign Labor Certification, OFLC Performance Data, and U.S. Department of State, Bureau of Consular Affairs, Nonimmigrant Visa Statistics.

5 Ruth Ellen Wasem, Immigration: Visa Security Policies, Congressional Research Service (November 18, 2015), https://fas. org/sgp/crs/homesec/R43589.pdf.

6 A few visa classifications for college educated guestworkers or those with extraordinary ability permit a 60-day grace period allowing the worker to remain in the United States to find new employment.

7 T nonimmigrant status is a temporary immigration benefit permitting victims of a severe form of human trafficking, and qualifying family members, to remain in the United States for having assisted the investigation or prosecution of human trafficking crimes. Qualifying T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services and may become lawful permanent residents. See U.S. Citizenship and Immigration Services, Victims of Human Trafficking: T Nonimmigrant Status, https://www.uscis. gov/humanitarian/victims-human-trafficking-other-crimes/victimshuman-trafficking-t-nonimmigrant-status. 8 U.S. Government Accountability Office, H-2A and H-2B Programs: Increased Protections Needed for Foreign Workers, March 2015 (revised on May 30, 2017), https://www.gao.gov/ assets/690/684985.pdf.

9 Polaris website, https://polarisproject.org/.

10 The National Human Trafficking Hotline attempts to connect human trafficking victims and survivors to critical support and services to get help and stay safe, and to equip the antitrafficking community with the tools to effectively combat all forms of human trafficking. It is a national, toll-free hotline, available to answer calls, texts, and live chats from anywhere in the United States, 24 hours a day, 7 days a week, in more than 200 languages. See https://humantraffickinghotline.org.

11 Polaris, Human Trafficking on Temporary Work Visas: A Data Analysis 2015-2017, https://polarisproject.org/human-traffickingtemporary-work-visas-data-analysis-2015-2017.

12 See Appendix A.

13 The Human Trafficking Legal Center, Federal Criminal and Civil Trafficking Cases Involving Legal Visas (May, 2020), available by request at http://www.htlegalcenter.org/resources/ case-database/.

14 Colleen Owens et al., Understanding the Organization, Operation, and Victimization Process of Labor Trafficking in the United States, Urban Institute (October 21, 2014), https://www. urban.org/research/publication/understanding-organizationoperation-and-victimization-process-labor-trafficking-united-states.

15 Efforts do exist to provide resources to close this information gap. One example is Contratados, a peer-informed review service for both recruiters and employers using the U.S. temporary foreign worker program. Contratados is operated by Centro de los Derechos del Migrante, and focuses primarily on international recruitment in Mexico. See https://contratados.org.

16 For examples, please see: International Labor Recruitment Working Group, Shining A Light on Summer Work: A First Look at the Employers Using the J-1 Program, July 30, 2019, https:// fairlaborrecruitment.files.wordpress.com/2019/07/shining-a

light-on-summer-work.pdf, (J-1 Summer Work Travel participants report finding wages, work conditions, and housing that are substandard and less then promised at their recruitment); Stephanie Hanes, Modern slavery: Labor Trafficking is Everywhere and Nowhere, October 26, 2015, Christian Science Monitor, https:// www.csmonitor.com/World/2015/1026/Modern-slavery-Labortrafficking-is-everywhere-and-nowhere, (H-2B carnival workers were made to endure illegal work and living conditions, earning less than a quarter of their promised wage); Kevin C. Hall, Moultrians charged in human trafficking case in Wisconsin, May 30, 2019, https://www.moultrieobserver.com/news/local_news/ moultrians-charged-in-human-trafficking-case-in-wisconsin/ article_1c722254-82e7-11e9-a665-bbd82c100fa9.html, (H-2A workers contracted to work in Georgia were moved illicitly to farms in Wisconsin).

17 See for example, the data and reports posted on the Department of Homeland Security’s Office of Immigration Statistics webpage, https://www.dhs.gov/office-immigrationstatistics, the USCIS’s Buy American Hire American page, https:// www.uscis.gov/legal-resources/buy-american-hire-americanputting-american-workers-first.

18 OFLC Performance Data, Office of Foreign Labor Certification, U.S. Department of Labor, https://www.foreignlaborcert.doleta. gov/performancedata.cfm.

19 “Buy American and Hire American: Putting American Workers First,” USCIS website, https://www.uscis.gov/legal-resources/buyamerican-hire-american-putting-american-workers-first.

20 See USCIS, “Reports and Studies,” https://www.uscis.gov/ tools/reports-studies/reports-and-studies.

21 U.S. Immigration and Customs Enforcement, Student and Exchange Visitor Program, https://www.ice.gov/sevis.

22 See DHS Office of Immigration Statistics, Annual Flow Report, Nonimmigrant Admissions (October 2018), https://www.dhs.gov/ sites/default/files/publications/Nonimmigrant_Admissions_2017.pdf.

23 Laura Francis, “Paperless Intake Is Immigration Agency Director’s Top Priority,” Bloomberg Law (Oct. 17, 2018), https:// news.bloomberglaw.com/daily-labor-report/paperless-intake-isimmigration-agency-directors-top-priority.

24 The Obama White House, Transparency and Open Government Memorandum for the Heads of Executive Departments and Agencies (January 21, 2009), https:// obamawhitehouse.archives.gov/the-press-office/transparencyand-open-government.

25 The Trump Administration, Presidential Executive Order on Buy American and Hire American, (April 18, 2017), https://www. whitehouse.gov/presidential-actions/presidential-executiveorder-buy-american-hire-american/.

26 “Buy American and Hire American: Putting American Workers First,” USCIS website, https://www.uscis.gov/legal-resources/buyamerican-hire-american-putting-american-workers-first. 27 Department of Homeland Security, 2017 Freedom of Information Act Report to the Attorney General of the United States and the Director of the Office of Government Information Services, (February 2018), https://www.dhs.gov/sites/ default/files/publications/FY%202017%20DHS% 20FOIA%20 Annual%20 Report.pdf

28 For a detailed timeline of this FOIA request, see Appendix B. See also International Labor Recruitment Working Group, Shining A Light on Summer Work- A First Look at the Employers Using the J-1 Summer Work Travel Visa (June, 2019), available at https:// fairlaborrecruitment.files.wordpress.com/2019/07/shining-a-lighton-summer-work.pdf.

29 See Justice in Motion, Visa Pages: H-2A Visa, https://bit.ly/2Whwji3.

30 See Justice in Motion, Visa Pages: H-2B Visa, https://bit.ly/2WzMUOj.

31 See Justice in Motion, Visa Pages: H-1B Visa, https://bit.ly/3j39GHO.

32 See USCIS, TN NAFTA Professionals, https://www.uscis.gov/ working-united-states/temporary-workers/tn-nafta-professionals.

33 See Justice in Motion, Visa Pages: L-1 Visa, https://bit. ly/32tUi1t.

34 See USCIS, O-1 Visa: Individuals with Extraordinary Ability or Achievement, https://www.uscis.gov/working-unitedstates/temporary-workers/o-1-visa-individuals-extraordinaryability-or-achievement.

35 See Justice in Motion, Visa Pages: F-1 Visa, https://bit.ly/3fsXLRx.

36 See Justice in Motion, Visa Pages: J-1 Visa, https://bit.ly/2OpzH5X.

37 See Justice in Motion, Visa Pages: B-1 Visa, https://bit.ly/38UaFFD.

38 9 FAM 402.2-5(E)(1)(b) - (U) Commercial or Industrial Workers; 8 CFR 214.2(b)(5); 22 CFR 41.31(b)(1).

39 9 FAM 402.2-5(D) - (U) Personal Employees/ Domestic Workers.

40 9 FAM 402.2-5(F) - (U) Aliens Normally Classifiable H1 or H3; 9 FAM 402.2-5(F)(4) - (U) H-3 Trainees.

41 Correspondence with Cate Bowman. See also Catherine Bowman, Flexible Workers, Fissured Workplaces: Cultural Exchange for Hire in An Era of Precarious Labor, Ph.D. dissertation (2019), University of Colorado.