III. BACKGROUND



We all suffer the same mistreatment. We come with illusions that they will pay a lot here. They offer us many things. They bring us here deceived . . . They bring women who don't know anything about American laws. The only thing left for these women is to continue being abused. They don't know where to go . . . I want there to be justice.

-Liliana Martínez, a Peruvian domestic worker employed from November 1999 through February 2000 by a representative of a mission to the Organization of American States (OAS)¹

Each year thousands of migrant workers enter the United States legally with nonimmigrant or "temporary" visas to work as live-in domestic workers.² The vast majority enter with one of three visas: A-3 visas to work for ambassadors, diplomats, consular officers, public ministers, and their families; G-5 visas to work for officers and employees of international organizations or of foreign missions to international organizations and their families;³ and B-1 visas to accompany U.S. citizens who reside abroad but are visiting the United States or assigned to the United States temporarily for no more than four years, or foreign nationals with nonimmigrant status in the United States. ⁴

In the 1990s, over 30,000 A-3 and G-5 visas were issued, mostly to women, as part of a State Department program that each year grants over 3,700 such visas.⁵ As these visas are issued for a duration of one to three years and may be extended in two-year increments,⁶ the number of such visa holders at any one time in the United States exceeds the number issued annually, and, as of November 1999, there were over 1,700 A-3s and over 2,300 G-5s registered with the State Department Office of Protocol.⁷

Domestic workers may also enter the United States on a third type of employment-based visa-the B-1 visa, issued for a maximum of one year and extended in six-month increments.⁸ The B-1 is the most frequently used nonimmigrant visa,⁹ with approximately 200,000 issued annually.¹⁰ Unless issued to a domestic worker, however, the B-1 is not an employment-based visa and, instead, is issued to individuals employed by companies abroad who are visiting the United States temporarily for business.¹¹ Unlike the A-3 and G-5 visas, the authority for issuing a B-1 visa to a domestic worker comes neither from statute nor regulation but rather the Senate Report accompanying the Immigration and Nationality Act of 1952.¹² Neither the State Department nor the INS knows what proportion of B-1 visas are issued to domestic workers, as neither keeps data of B-1 visa issuance by profession of the B-1 holder.¹³

Live-in migrant domestic workers perform household tasks that are traditionally devalued and perceived as unproductive "women's work." They assume a role in their employers' households similar to that of the traditional housewife. In many cases, domestic workers find themselves in employment situations in which their human rights are respected. In other cases, employers exploit the power imbalance in the employment relationships to violate workers' rights, including the rights to freedom of movement, to freedom of association, to privacy, to just and favorable conditions of work, including a healthy and safe workplace and fair remuneration, to health, to be protected against sex discrimination, including sexual harassment, and not to be held in servitude or required to perform forced labor.

Estimating the percentage of employment relationships in which domestic workers suffer one or more human rights abuses is extremely difficult. Because of lack of governmental monitoring and deterrents that impede and often prevent domestic workers from making legal complaints alleging abusive employer treatment, the number of reported cases of abuse of migrant domestic workers with special visas most likely underrepresents the number of actual cases. No governmental records exist logging even those reported cases.

Two Washington, DC-area organizations and attorneys which have represented, assisted, or provided social services to these domestic workers, revealed that in 1999 alone these organizations and attorneys received approximately 160 calls from domestic workers alleging some form of employer abuse.¹⁴ In addition, from June 2000 through September 2000 alone, the Washington, DC-based Campaign for Migrant Domestic Workers Rights received approximately twenty-two such calls.¹⁵

In May 1996, the State Department was sufficiently concerned about the number of reports of abuse of domestic workers with special visas employed by diplomats and consular officials that the department wrote to diplomatic Chiefs of Missions, stating that it was "concerned to learn of problems which continue to arise in the working relationships between some members of the diplomatic and consular community and their personal household employees."¹⁶

No formal data exists, however, regarding the abusive treatment of migrant domestic workers with special visas. Considering such figures and testimonies and recognizing that abusive treatment is severely underreported, Human Rights Watch believes that abuse is widespread.

¹ Human Rights Watch telephone interview, Liliana Martínez, a G-5 domestic worker, April 17, 2000.

² "Migrant worker" refers to "a person who is . . . engaged in a remunerated activity in a State of which he or she is not a national." International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, Annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49, 1990, Article 2(1).

³ G-5 and A-3 visas can be issued to "attendants, servants, and personal employees." This report focuses on workers issued visas as "servants," however, and does not address the smaller percentage of workers issued visas as chefs, gardeners, chauffeurs, and other "attendants" or "personal employees."

⁴ INA _ 101(a)(15)(A)(iii), (B), (G)(v); 9 FAM 41.31, N6.3 (August 30, 1988).

⁵ In 1998, 3,762 A-3 and G-5 visas were issued. The largest percentages were held by workers from the Philippines (22.3%), Indonesia (8.1%), Peru (5.6%), India (4.8%), and Brazil (4.7%). "Nonimmigrant Visa Statistics for 1998." (No date). [Online]. Available: http://travel.state.gov/1998niv_1.pdf [February 7, 2001]; "Nonimmigrant Visa Statistics for 1998." (No date). [Online]. Available: http://travel.state.gov/1998niv_2.pdf [February 7, 2001].

⁶ INS Operations Instructions (OI) 214.2(a)(1)(i), 214.2(a)(7)(i), 214.2(g)(1)(i), 214.2(g)(7)(i); 8 C.F.R _ 214.2(a)(1), 214.2(g)(1). The Operations Instructions are the internal operations manual for the INS.

⁷ Human Rights Watch telephone interview, State Department Official B, March 17, 2000. In 1998, there were 4,061 registered; in 1997, 4,010; in 1996, 3,801; and in 1995, 3,675. Human Rights Watch telephone interview, State Department Official B, June 13, 2000. As explained below, U.S. officials who spoke with Human Rights Watch on the condition of anonymity are identified by their departments or agencies and distinguished by letters.

⁸ 8 C.F.R. _ 214.2(b)(1).

⁹ 58 F.R. 40024 (July 26, 1993).

¹⁰ United States Department of State, Bureau of Consular Affairs, Report of the Visa Office 1998 (December 2000), p. 107.

¹¹ INA _101(15)(B); 58 F.R. 40024 (citation omitted); 58 F.R. 58982 (November 5, 1993) (citation omitted).

¹² 58 F.R. 40024. Although in 1993 the State Department and the Department of Justice issued proposed rules to regulate the employment of B-1 domestic workers, the rules were never finalized. See Ibid.; 58 F.R. 58982.

¹³ Human Rights Watch telephone interview, United States Department of State Visa Services Office employee, November 17, 1999.

¹⁴ From approximately June 1999 through June 2000, CASA of Maryland, Inc. opened thirty cases on behalf of domestic workers with special visas against their employers, and, according to a CASA attorney, "through our promoters and calls to our office, we've probably spoken to or counseled three times that number." Human Rights Watch telephone interview, Steven Smitson, attorney, CASA of Maryland, Inc., June 7, 2000. Similarly, while working for the Spanish Catholic Center in Washington, DC, from 1991 through 1992 and 1993 through 1995, attorney Celia Rivas received approximately twelve to fifteen calls per month from A-3 and G-5 migrant domestic workers alleging abusive working conditions, totaling roughly 160 calls per year, and from 1995 through the present, working in Gaithersburg, Maryland, she has received approximately six such calls per month, totaling roughly seventy calls per year. Rivas believes she received more calls in Washington, DC, because more A-3 and G-5 domestic workers live in Washington, DC. Human Rights Watch telephone interview, Celia Rivas, attorney, Spanish Catholic Center, Gaithersburg, Maryland, November 29, 1999.

¹⁵ Human Rights Watch telephone interview, Joy Zarembka, Director, Campaign for Migrant Domestic Workers' Rights, September 27, 2000. The Campaign for Migrant Domestic Workers' Rights is a coalition of approximately two dozen non-governmental organizations in the greater Washington, DC, area, including social service, legal, religious, and human rights organizations, formed under the auspices of and based at the Institute for Policy Studies, to assist migrant domestic workers with special visas.

¹⁶ Letter from Secretary of State to Their Excellencies and Messieurs and Mesdames the Chiefs of Mission, May 20, 1996, p. 1. The letter listed the "problems" as including instances:

where wages have been withheld from personal domestics for undue periods; where the wages actually paid are substantially less than those stipulated at the time of employment; where passports have been withheld from the employee; where the actual number of working hours weekly is substantially more than those originally contemplated and with no additional pay; and where the employee has been forbidden from leaving the employer's premises even though off duty.

The letter also noted that the United States would hold the Chiefs of Missions and sending governments responsible for employers' misconduct and advised that the State Department would examine closely cases of alleged abuse of domestic workers and take appropriate actions.