As a former participant, who suffered from the program, I have spearheaded a comprehensive overview of the J-1 Summer Work and Travel USA program in Russia. Additional information was gathered from Belarus, Ukraine, Kazakhstan and other countries. Plenty of collected evidence convincingly demonstrates that many complaints described in the Au Pair lawsuit such as program manipulation, collusion, consumer fraud, cheating young workers to increase profits, and other abuse are also applicable for the J-1 Summer Work Travel program. Serious program violations, identified and documented during the study, are thoroughly described in the report.
It follows that in the period of many years thousands of Russian and other foreign students have been injured as a result of sponsors’ misconduct. Therefore and as the research findings indicate, there is a strong sentiment and high potential for the global J-1 Summer Work Travel class action lawsuit. Class action plaintiffs may bring claims against sponsors for violations of Regulatory Compliance, Antitrust, Consumer Fraud, Fraud and Misrepresentation, Misleading advertising, Negligence, Labor Trafficking, Breach of fiduciary duties, and other as deemed applicable by attorneys.
The lawsuit would be driven by activists’ desire to rectify documented program violations and prevent further abuse of foreign students. Just like in the Au Pair lawsuit, swt class action would be brought by a single participant but will inevitably grow into the global phenomenon. Indeed, the research indicates there is plenty of evidence of sponsors’ and agents’ misconduct out there. If systematically collected, documented and presented, the evidence will be sufficiently solid to win the legal case at least for participants from Russian speaking countries. It is further expected that in the process participants from other countries will be encouraged to join the lawsuit, collect and bring their own evidence. Thus, a global swt class action lawsuit or wave of swt lawsuits will be initiated, trialed and ultimately won.
Why plaintiffs in the global swt class action lawsuit will prevail:
- “Four Prerequisites” for a class action can be easily met:
- Class is numerous – more than 4,000 students from Russia and 100,000 students from all countries participated in the program in 2019 alone, more than 60,000 students from Russia and more than 1 million students worldwide participated in the program in the last 10 years. Former swt participants will have strong incentives to join the case. In addition to sore feelings of being cheated, high USD exchange rate and low income in swt sourcing countries makes participation in the case financially attractive. At least $3,000 in damages for each participant is expected to be demanded. Thousands of foreign students have been attracted into the program with false promises of high earnings. Having a strong appetite for money, the very same individuals will join the lawsuit to seek monetary compensation. Further, because the future of the swt program is uncertain, younger participants will be willing to use their “last chance” to receive compensation from the “defunct” swt program. Additionally, Covid-19 significantly reduced opportunities for foreign nationals to travel in the US with other nonimmigrant visas. Therefore, consequences from “damaged” visa history, claimed by crooked agents due to students participating in the case, are negligent. Graduated participants would care even less about the“impact on visa history”. Moreover, mismanagement of the program in 2020 during the Coronavirus crisis has seriously damaged sponsors’ and agents’ reputation worldwide. Since applicants suffered huge financial damage and feel cheated, students will be eager to “spread the word” about the lawsuit and seek “revenge”.
- Important legal and factual issues are common to all plaintiffs – this requirement is satisfied by plenty of direct evidence as reflected by the study. Since the same sponsors that operate in Russia also operate in other countries, it is logical to assume the violations are the same. Indeed, empirical evidence confirms that swt participants from other countries suffered from similar abuse.
- At least one individual has a case that is “typical” of the claims of the class – lead plaintiff will fulfill this requirement. There are many potential lead plaintiffs – there are several hundred of former Russian swt participants currently residing in the US who have suffered from identified violations. It is highly likely there is at least one former swt participant for each swt sponsor/agency. Given negative sentiment, opportunity to use the lawsuit for immigration purposes, money need, payment priority, service award and free legal counsel, identified persons would rush to serve as lead plaintiffs. For example, the report’s author (US citizen) – a former swt participant, if offered, would consider serving as a class representative.
- Individual will fairly represent the interests of everyone in the class – lead plaintiff, being a typical and average swt participant, will naturally fulfill this requirement.
- The contours of the class will be easily defined by reference to defendants and government records kept for each J-1 visa issued to swt participant.
- Plaintiffs will be represented by attorneys experienced in litigation in class actions on the contingency fee basis (free of charge).
- The US Department of State – the ultimate administrator of the program – has repeatedly emphasized the importance of the marketing information in the recruitment process because “The foreign entities’ initial outreach to potential program participants sets the stage for participants’ expectations about the Summer Work Travel Program” [33]. However, there is plenty of direct documented evidence that sponsors and agents have grossly violated and continue violating this requirement.
- The class action will be easy to manage due to uniformity of claims among the class members, the susceptibility of the claims to class litigation, the use of representative testimony and representative documentary evidence, as shown by the study.
- The 24-month long research has documented materials that demonstrate violations. Examples include but not limited to:
- Marketing materials – slide decks, recorded presentations and webinars
- Social media posts and representations
- Websites
- Handouts
- Targeted ads
- Statements from recruiting coordinators
- Direct messages
- Marketing emails from agents
- Emails and other representations from sponsors
- Participants’ testimonials
- Marketing in search engines
- Other
- Analysis and calculations provided in the report support the essence of described violations.
- The lead researcher has multiyear direct participation experience and deep knowledge of the SWT program (see swt dedicated website). Among other things, the author has spearheaded the nationwide campaign to refund money to Russian swt applicants during the 2020 Coronavirus crisis. Efforts have been noted by the US CIS. The author will be happy to collaborate with activists and share the knowledge.
- Governmental immunity principles do not apply to sponsors. In fact, a U.S. magistrate judge in 2016 stated that such a claim is “wholly without merit”.
- Per common sense and program rules, sponsors are entirely responsible for actions of their foreign swt agents:
- Existing US Department of State regulations provide that a third party’s violation of program regulations will be “imputed” to the sponsor. The regulations require sponsors to undertake extensive oversight of the third parties with whom they contract to ensure compliance with all EVP program rules and regulations. The State itself has used “imputation” to discipline sponsors. For example, per [105] “the Department has used the imputation of a third-party’s alleged acts or omissions onto a sponsor to support sanctions” (case describing sanctions imposed against program sponsor based on imputed acts of third party).
- The US Department of State proposed new swt regulations in 2017 in which the Agency not only maintained “imputation” regime; the proposed rules expanded the class of entities whose acts or omissions are “imputed” to include among others those which are unknown to the sponsor[105]. In 2017 the State also wrote that it expected sponsors to “closely oversee the actions of any foreign third parties with which they work” [45].
- Existing precedent when the State denied sponsor a redesignation because it “Violated multiple provisions of regulations relating to vetting and screening foreign entities”[19].
- US Federal auditors stated that “Sponsors vet overseas and domestic agents”[19].
- Indecent reputation of sponsors’ and their foreign agents’:
- Critique from multiple credible American organizations, media, federal auditors and the State.
- The US Department of State has formally agreed with the strong criticism of the program (including swt sponsors) from government auditors in 1990, 2000, 2005, 2015. In 2002 the State’s top official Colvin said there was “enough blame to spread around to everyone,” saying the principal wrongdoers have been “unscrupulous” overseas recruiters “who are misrepresenting the program” [132]. In 2005 the Agency stated that “the program regulations have been ignored by some exchange program sponsors” and that “sanctions outlined in the regulations are difficult to enforce”[11]. In 2010 the US Embassy in Moscow, in reference to serious swt violations, stated that “The Moscow post believes that most of the problems stem from Russian agents”[in75]. In 2011 the State Department further stated that it “has no assurance that the third parties who perform these tasks are qualified to take on the required roles of the sponsors” [40] and mandated US sponsors to vet foreign agents to ensure compliance. Nonetheless, collected evidence shows that sponsors failed to rectify issues they had been aware of.
- Multiple examples when swt participants filed formal complaints, for instance:
- In 2018, a labor trafficking lawsuit was filed by former swt participants seeking class action lawsuit.
- In 2016, SPLC represented swt participants in a complaint against a temporary labor broker. In 2015, the SPLC represented another swt participant who paid $3,000 to work in a culinary position. In summer 2016, SPLC notified the State Department about numerous program rule violations [123, 145].
- The EJC has provided counsel, advice and/or representation to student workers on J-1 visas from Russia, China, Taiwan, Ukraine, and Colombia. Through this experience, EJC has seen J-1 workers suffer from a variety of workplace abuses, including wage theft, excessive charges for housing, illegal threats, retaliation in violation of the National Labor Relations Act, and other violations [114].
- In 2013 after the sponsor placed 15 swt participants in MacDonald’s deplorable conditions, students demonstrated and the US Department of Labor subsequently fined franchisee $211K in unpaid wages, damages and penalties[124].
- Testimony of swt participant to the Maryland House Economic Matters Committee in 2018, and conversations between the participant and Centro de los Derechos del Migrante, Inc. [128].
- Russian legal precedents [in77].
- American attorneys who work with swt students confirm program violations [270].
- Recent class action lawsuits against swt sponsors in other J-1 programs: “Combatting manipulation of the J-1 Internship program” (filed in 2019, [273], in160) and Au Pair (settled in 2019 for $66 millions).
Consequences of the class action lawsuit
The consequences of the global swt class action case are numerous and are not limited to the following:
- Financial damage to sponsors – upon reaching the settlement with plaintiffs/convicted by jury/judge, sponsors will have to compensate swt participants for damages. Conservatively assuming that 50% of former participants sign up for the lawsuit, the settlement would represent a very large amount. More than 60,000 students from Russia and more than 1 million students worldwide participated in the program in the last 10 years. Assuming $3,000 granted compensation to each participant, the sponsors will have to pay about 90 million dollars to Russian participants and over 1 billion dollars worldwide. This estimate does not include punitive damages. Additionally sponsors will have to spend millions of dollars in litigation and attorney fees.
- If price fixing and collusion is confirmed sponsors would have to pay high corporate fines. Price fixing is a criminal violation under the Sherman Antitrust Act federal law, a civil violation under the Federal Trade Commission, and a violation under state antitrust laws.
- Class action lawsuit filed by Russian speaking participants would create a precedent. Moreover, the report may be used as an example of the swt class action lawsuit data collection for participants from other countries. When launched, the class action lawsuit will directly impact only sponsors operating in Russia and few other Russian speaking countries. However, since identified violations appear to have taken place worldwide, subsequently all other sponsors would be impacted either directly through separate class action lawsuits/by other participants joining the global lawsuit or indirectly (see below).
- Financial damage to all sponsors due to reputational damage to the program – since all the pertinent information will be made available for public view and the ongoing/settled lawsuit will attract media attention, it will damage the program’s reputation worldwide and cause problems with recruitment in the future. Ongoing multi year litigation will reduce recruitment level and put downward pressure on program prices.
- Provide moral encouragement and additional information to plaintiffs in other J-1 lawsuits which might be used against all sponsors.
- May negatively impact sponsors’ other programs worldwide. Authorities in Russia and other countries may be urged to scrutinize sponsors’ programs and put severe restrictions.
- Sponsors might be sanctioned by the US Department of State and their license to conduct J-1 programs might be revoked/suspended.
- Reduction in sponsors’ profit margins due to implementation of additional program requirements (reciprocity, cultural exchange, competitive pricing, etc.).
- The US government may be urged to revise existing J-1 rules and adopt much stricter regulations.
- May impact the future of the J-1 SWT program / reduce effectiveness of lobbying efforts to exempt the swt program from the expanded presidential proclamations 10014, 10052 and executive orders (BAHA). As such, a temporary ban of J-1 visas might be extended or even become permanent.
Proposal
As the research indicates, the fundamental pillars of the program have seriously eroded. The report might become a catalyst for major overhaul of the program and even instigate a global lawsuit/series of swt lawsuits against sponsors. Among other things, because many swt participants took decision to participate in the program based on the false information, they will demand reimbursement for all fees paid and expenses incurred, opportunity cost, moral and mental stress, harm to health, and other arrangements made in reliance on receiving the terms outlined in agents/sponsors communication with swt applicants. As such, a formal complaint from swt participants might be filed and the case certified as a class action case. Contingency fee based and non-for profit attorneys would be eager to take and spearhead the case.
It is understood that the potential litigation would be long and result in high legal fees on sponsors’ side. It is in the best interest of all stakeholders to address identified violations as soon as possible and avoid lengthy and costly litigation. Therefore, it is proposed the Sponsors download the report, study it and correct identified violations. Doing so would preserve the integrity of the program and ensure fulfillment of the FH Act objectives for the ultimate benefit of American people. It should also minimize risk of litigation from future swt participants and associated negative consequences (multimillion global settlement, long-term reputational damage, extension/renewal of J-1 ban, etc.).
Published October 16, 2020. Updated October 16, 2020.
About us
Team of swt veterans dedicated to protect and educate swt students. Stope swt abuse. Stop swt lies. Protect vulnerable students. Whether it is the US Department of State, American sponsor/employer or overseas agent, they all must respect the rights of swt participating students.
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