Coerced under NAFTA: Abuses of Migrant Worker

SUMMARY

Every year, thousands of Mexicans come to work in the United States as professionals on TN

visas. Workers report that TN visa employers and their recruiters commit fraud, retaliation,

discrimination, wage theft, and economic coercion, among other abuses. A common thread in

these abuses is the undue power wielded by employers under the TN visa.

These recruitment and employment abuses are compounded by the TN visa program’s lack of

oversight. Despite chronic underfunding and other shortcomings in enforcement, the Department

of Labor’s oversight of other guestworker programs provides a modicum of transparency and

basic rights protections that is absent in the TN visa program.

In order to reduce worker abuses in the TN visa program, the U.S. government should create

transparency in the recruitment of TN workers, establish meaningful oversight and access to

justice, and prohibit fees and hiring practices that result in economic coercion and other labor

abuses.

About CDM and Acknowledgments .............................................................3

Background ................................................................................................4

Abuses and Recommendations ...................................................................6

Workers' Stories .........................................................................................8

Conclusion..................................................................................................12

Comprehensive Recommendations .............................................................12

TABLE OF CONTENTS

Centro de los Derechos del Migrante, Inc. (CDM) envisions a world where migrant workers’ rights

are respected and laws and policies reflect their voices. Through legal support, policy advocacy,

and outreach and leadership development, CDM empowers Mexico-based migrant workers to

defend and protect their rights as they move between their home communities in Mexico and their

workplaces in the United States. www.cdmigrante.org

ABOUT CDM

CDM would like to thank Elizabeth Mauldin for writing this report. CDM also thanks Norma Ventura

for analysis of complaints received by CDM, Sarah Southey for data analysis, and Gabriela Brito for

outreach to TN workers.

CDM also thanks the workers who courageously shared their stories for this report.

ACKNOWLEDGMENTS

December 2017

Created in 1993 under the North American Free

Trade Agreement (NAFTA), the TN visa allows

citizens of Mexico and Canada to work in the United

States for a period of 3 years, subject to extension

and limitless renewal. To qualify for the TN visa, an

applicant must have pre-arranged employment, and

the applicant’s experience and education must meet

the criteria laid out in NAFTA. TN workers must fit

into specific professional categories, such as

economist, psychologist, meteorologist, or university

professor.

Employers’ usage of the TN visa has grown

dramatically in the last decade. Since Canadian

workers can enter the U.S. with the more easily

acquired TN status, which only requires meeting TN

requirements at the port-of-entry rather than at a

consular interview, the overwhelming majority of TN

visas are granted to Mexicans. Until 2004, NAFTA

capped the number of Mexican citizens who could

enter the United States on the TN visa at 5,500 per

year. In 2004, ten years after NAFTA went into

effect, the United States eliminated the cap and most

oversight requirements, and the number of visas

issued began to rise. Between 2011 and 2016, the

number of TN visas issued per year nearly tripled.

General: Accountant, Architect, Computer

Systems Analyst, Disaster Relief Insurance

Claims Adjuster (claims Adjuster employed by

an insurance company located in the territory

of a Party, or an independent claims

adjuster), Economist, Engineer, Forester,

Graphic Designer, Hotel Manager, Industrial

Designer, Interior Designer, Land Surveyor,

Landscape Architect, Lawyer (including

Notary in the Province of Quebec), Librarian,

Management Consultant, Mathematician

(including Statistician), Range

Manager/Range Conservationalist, Research

Assistant (working in a post-secondary

educational institution), Scientific

Technician/Technologist, Social Worker,

Sylviculturist (including Forestry Specialist),

Technical Publications Writer, Urban Planner

(including Geographer), Vocational

Counsellor.

Medical/Allied Professional: Dentist,

Dietitian, Medical Laboratory Technologist

(Canada)/Medical Technologist (Mexico and

the United States), Nutritionist, Occupational

Therapist, Pharmacist, Physician (teaching or

research only), Physiotherapist/Physical

Therapist, Psychologist, Recreational

Therapist, Registered Nurse, Veterinarian.

Scientist: Agriculturist (including

Agronomist), Animal Breeder, Animal

Scientist, Apiculturist, Astronomer,

Biochemist, Biologist, Chemist, Dairy

Scientist, Entomologist, Epidemiologist,

Geneticist, Geologist, Geochemist,

Geophysicist (including Oceanographer in

Mexico and the United States), Horticulturist,

Meteorologist, Pharmacologist, Physicist

(including Oceanographer in Canada), Plant

Breeder, Poultry Scientist, Soil Scientist,

Zoologist.

Teacher: College, Seminary, University.

BACKGROUND

Authorized Professions under the

TN Visa

1. See North American Free Trade Agreement (NAFTA), Can.-Mex.-U.S.,

Dec. 17, 1992, 32 I.L.M. 289, Appendix 1603.D1 (1993).

2. U.S. Dep’t of State, “Nonimmigrant Visas Issued by Classification

(Including Border Crossing Cards) Fiscal Years 2012-2016” 3,

https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016

AnnualReport/FY16AnnualReport-TableXVIB.pdf (showing annual growth

in TN issuance).

3. NAFTA, Appendix 1603.D4. There is no cap the number of family

members who can enter the United States on TD visas from either country.

4. Eliminating the Numerical Cap on Mexican TN Nonimmigrants, 69 Fed.

Reg. 11,287 (Mar. 10, 2004) (codified at 8 C.F.R. pt. 214.6).

5. U.S. Dep’t of State, “FY 1997-2016 Nonimmigrant Visa Issuances by

Visa Class and by Nationality”,

https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-

Statistics/NIVDetailTables/FYs97-16_NIVDetailTable.xls (outlining

nonimmigrant visas issued by country and visa). In 2011, U.S. Dept. of

State reported issuing 4,971 TN visas versus 14,768 in 2016.

TN Visas Issued to Mexicans: 1997-2016

Data Source: Dept. of State Nonimmigrant Visa Issuances by Visa Class and Nationality

Visas Issued

Number of Visas

As with other temporary work visas, recruitment for the TN visa takes many forms: workers

report being recruited through job fairs, recruitment agencies, individual recruiters, or friends.

Mexican TN workers apply for the TN visa at the consulate. If the consulate grants the visa, the

TN worker travels to the United States to begin work.

TN workers report abuses that begin at the time of recruitment and continue throughout their

employment. Many workers return home heavily indebted, having suffered abuses on the job and

sacrificed opportunities at home.

Economic coercion of TN workers takes several forms. Recruiters often charge recruitment fees

as high as $1,000 to facilitate job placement, an upfront economic burden on TN workers who

arrive to the worksite indebted after taking out loans to cover the fees. In addition to recruitment

fees, workers often pay their own transportation, visa, and other travel-related costs that

compound their debt. Workers who arrive to the job indebted are particularly vulnerable to

abuses: because they owe money in their home countries and because reporting abuses could

jeopardize their employment and visa, workers are forced to choose between remaining at an

abusive job or returning home to insurmountable debt.

In addition to recruitment fees and costs, some TN workers report that their contracts contain

breach fees -- costs they have to pay their employer if they leave the job before the contract

term is complete. In some cases, these breach fees are as high as $10,000 to $15,000. Workers

report that looming breach fees have a chilling effect on reporting abuses. TN workers who

thought they were coming the the United States to make economic headway discover that they

must either remain in poor working conditions or return home in debt.

TN workers in a range of industries also report being hired by staffing agencies that wield undue

economic power over them. Staffing agencies contract workers out to temporary employers as

long as workers do not complain about their working conditions. The nature of working at a

staffing agency is that work is intermittent. Because the workers’ visas are tied to their

employers, seeking more consistent work with other employers is difficult if not impossible in

practice. Instead, TN workers who work for staffing agencies must take whatever work is given

them. In one case, a TN worker was forced to secure his own temporary work on behalf of a

staffing agency if he was to have any work. He was only paid for the periods in which he

successfully secured work. The contract the worker had with the staffing agency contained

breach fees, which empowered the staffing agency to coerce the worker into remaining on the

job, despite the oppressive conditions.

Recommendations: Recruitment and contract breach fees should be prohibited in the TN visa

ABUSES AND RECOMMENDATIONS

ECONOMIC COERCION

6. For purposes of this paper, reports are based on complaints made to CDM between 2014 and publication in December 2017.

Additional evidence of abuses: The National Human Trafficking Hotline, maintained by Polaris, reports that from June 30, 2016 to

June 30, 2017, it received 12 complaints from TN workers who were victims of labor exploitation.

CONTRACT MISREPRESENTATION AND FRAUD

7. 8 C.F.R. 214.6(d)(3)(ii); 9 FAM 402.17-5(B) Evidence of Professional Employment.

program. The TN visa should be legislatively reformed to give workers control over their visas.

If employer sponsorship of visas is maintained, staffing agencies should be prohibited from

hiring workers on TN visas. The Department of Labor should certify TN employers after verifying

non-abusive contract terms and posting the terms in a database of certified TN employers. The

Department of Labor should work with the Department of Homeland Security U.S.

Citizenship and Immigration Services to facilitate the process by which workers change

employers.

In addition to proof of the requisite experience and professional education, NAFTA requires that

TN applicants provide an employment letter or contract at the consular interview to prove an

employment relationship. However, workers recruited for a TN visa often report not receiving a

written contract, and when a contract has been provided, it is almost always vague or

misleading. Workers report receiving employment letters that are similarly vague and

misleading. Workers are often reliant upon employer letters for information about the nature of

their work, and these vague letters, which often fail to spell out the nature of the employment,

give employers undue leeway to manipulate job assignments once workers have arrived in the

United States.

Contracts and employment letters for TN visas are not maintained in any public database, nor

are their contents meaningfully regulated. In one case, the employer did not identify the job

position or the visa category. In another case, the employer listed a range of potential job duties,

including farm labor and child care, which are not professions designated under NAFTA as

qualifying for the TN visa. The consular officer nevertheless approved the visas. In other cases,

the employer made verbal promises about the terms and conditions of the job, which led to

enforceability problems for the workers. After being promised professional positions, some

workers found themselves performing menial tasks. There is no remedy or complaint mechanism

built into the TN visa program for this type of misrepresentation and fraud.

Recommendations: The Department of Labor should oversee the TN visa program and should

require vetting and certification of TN employers and their contracts before they can hire TN

workers. The Department of Labor should create a database of certified TN employers and

available jobs so that workers can verify the existence of jobs, ensure the jobs meet their

professional qualifications, and verify the terms of their employment. The database should be

available in real time so that workers can verify favorable contract terms and so that they do not

fall victim to fraud. The database should enable workers to apply for positions directly with

employers rather than using recruiters.

2015 after obtaining an employment offer as a computer systems analyst from a Florida-based

company. I arrived with the expectation that I would be working on various projects under the

company hiring me and that I would be making $60,000 a year. However, as soon as I arrived I

discovered that the company who had helped me obtain my TN visa had taken advantage of me.

It quickly became clear that all the promises they had made to me were false. First, the company

that had brought me over was not going to give me an assignment as they had promised, but rather

they were an intermediary company. For months I was forced to undergo interview after interview in

an effort to find a job -- a job that I thought I already had when I left my home country for the United

States. Additionally, while I tried to find a job, I would only receive $250 every two weeks. After

months of interviews and as a result of my hard work, I was able to find temporary employment with

a company in California. This unfortunately, was only a short-term contract, and after I completed my

project, I once again was left empty handed. The company that had brought me to the United

States once again offered me $250 every two weeks but only if I returned to Florida. I decided to

stay in California to continue my job search without success. By June 2016, I was forced to return to

Mexico.

In July 2016, a company I had interviewed with previously contacted me offering me a position. I

made the necessary changes to my visa with the U.S. embassy and headed back to the United

States. I thought everything had finally worked itself out, but upon landing I received a message from

my previous company claiming that I had violated the terms of my contract and threatening to take

legal action not only against me but also against my new employer.

Despite the many obstacles I faced and continue to face, I am grateful for my TN visa. Although, I

know that the reason these companies hire TN workers is because the process is not difficult for

them and they can take advantage of us, I am still thankful for the existence of a visa that permits

me to demonstrate my abilities and what I am worth. I only wish that this visa would allow for family

stability. Although my wife is able to come to the United States with a TD visa, she cannot work. It

doesn’t matter that she is a professional that could contribute so much to the United States.

I am a TN visa worker who has faced and continues to

face many obstacles while seeking to improve my life and

that of my family. I first arrived in the United States on June

management consultant on a TN visa. I decided to accept the offer in order to travel less between

Mexico and the United States and to spend more time with my family.

Having worked for so many years as a consultant for companies from nine different countries, I

never imagined the nightmare I would face working for a U.S. employer. I began my new job in

December 2014 and quickly realized that, despite what I had been told about the leadership role I

would play, I was one of only two company employees. There was no room for me to apply my skills

or knowledge. In contravention of my written work offer, I worked as a secretary, working many hours

of overtime and doing the work that would have been appropriate for six employees. I was forced to

study for various IRS exams that would allow the company to get a license to serve customers.

About a month into my job, I suggested to my boss that he hire more employees so that I could start

doing the work that I had been hired for. My boss responded that the company did not have any

money to hire any more employees, but his response to my suggestion did not end there. For various

hours he kept me locked up in the office, yelling at me, insulting me, and saying that I could not

leave until he said so because he paid my salary. Shortly after this incident, the office abruptly

closed, and only then did I learn that even prior to offering me a job, the company had already filed

for bankruptcy. I could not believe that I was in this situation. I had spent so much time proving my

qualifications to the U.S. government in order to get the visa, and yet the U.S. government had not

held itself to the same standard by investigating my employer, ensuring that the offer was valid, and

verifying that the company was in good standing.

I found myself in an impossible position: I had lost my job, I was unable to seek other employment

because of the terms of my visa, and my husband had recently left me, which meant I had no TD

visa to fall back on. In a matter of months I had lost everything. I tried to seek legal help but was

unable to find legal counsel that knew enough about the TN visas to take my case. Instead, I was

forced to sell everything I owned to cover the debt due to high costs I had incurred traveling back

and forth to process my TD and then TN visas, and I returned to Mexico empty handed.

This situation ended my financial autonomy and my human right to provide for my daughters and

myself. It put us in a devastating economical, psychological, and emotional position, forcing us to

live a nightmare for months and nullifying our possibility to worthily repatriate to Mexico.

My name is Beatriz. Because my husband had a TN visa, my

daughters and I first moved to the United States in 2013 as his

dependents on TD visas. The TD visa did not permit me to work in

the United States, but I remained successfully employed with my

Mexico City employer with whom I had worked for 13 years. In

November 2014, a Texas company offered me a position as a

RETALIATION

Workers report an unequal power relationship with employers, who use the binding nature of

contracts with TN workers to coerce workers. Workers report a hostile work environment and

fear of retaliation if they complain about their working conditions. Recruitment fees charged to

workers for access to a job and breach fees triggered if a worker leaves a job exacerbate

workers’ concerns about retaliation.

Although in theory a TN worker who feared retaliation could change employers, the reality is that

finding another employer willing to hire a worker on a TN visa is difficult if not impossible. There

is no database of employers willing to hire workers on TN visas. Because the visa is tied to the

sponsoring employer, a worker who wants to change employers not only needs to locate another

willing employer but also has to file an application with U.S. Citizenship and Immigration

Services or a U.S. consulate to change employers. Thus, instead of being able to freely change

employers, TN workers are bound not only by their unfair contracts but also by their fear of

losing their jobs or their visas if they complain. Indeed, nearly all workers who did complain

reported that their working conditions worsened afterwards.

Recommendations: The Department of Labor should oversee the TN visa program and should

rigorously protect whistleblowers and enforce anti-retaliation law. The Department of Labor

should create a database of certified TN employers and available jobs so that workers can easily

change employers. The Department of Labor should work with the Department of Homeland

Security U.S. Citizenship and Immigration Services to facilitate the process by which workers

change employers.

Both men and women workers on TN visas report sex discrimination against women with respect

to the job duties assigned at the worksite. One TN worker’s supervisor explicitly told her that she

received a particular job assignment because she was a woman. Another TN worker reported

being required to care for her supervisor’s children during her days off, ostensibly because she

was a woman.

Unscrupulous employers use the process of international labor recruitment to evade U.S. anti-

discrimination law, across visa categories and industry sectors. Employers specify to recruiters

the race, gender, age, and other discriminatory bases for selection and hiring of workers

overseas. Although internationally recruited workers are protected by U.S. anti-discrimination

law, they experience barriers to reporting violations and accessing the legal system. During their

employment, workers often fear retaliation if they report violations, since their visas are tied to

DISCRIMINATION

- 'Rosa," hired as an animal scientist

their employers. Upon returning home, reporting violations, finding legal support, and accessing

justice is even more complicated.

Recommendations: The Department of Labor should work with the Equal Employment Opportunity

Commission to rigorously monitor and enforce anti-discrimination law. Data regarding race, color,

religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age, and

disability for TN workers should be collected and maintained in a publicly available database so that

discrimination can be monitored and the law can be enforced. U.S. Consulates should provide

prospective TN workers with information on filing complaints of discrimination with the Equal

Employment Opportunity Commission.

TN workers report a range of wage abuses including being paid significantly less than what was

promised at the time of recruitment or in their offer letters, prolonged periods of nonpayment during

their contracts, underpayment compared to other workers in their field and geographic region, and

even payment below the federal minimum wage. An analysis of the wages of TN workers compared

to the mean prevailing wage for the applicable industry and region shows that TN workers were

paid as little as a quarter of what similarly situated U.S. workers earned. One TN worker was hired

as a professional but worked 10 to 15 hours per day as a chauffeur at a rate of $6 per hour.

Recommendations: The Department of Labor should oversee the TN visa and should rigorously

monitor and enforce wage protections for TN workers. The Department of Labor should maintain a

database of certified TN employers in relation to jobs offered so that workers can verify the terms of

their employment, including the wages offered. TN workers should be provided with information on

filing complaints of wage abuses with the Department of Labor Wage and Hour Division.

WAGE THEFT

8. Analysis based on a comparison of wages in reports to CDM with the mean wage listed on the Foreign Labor Certification Data

Center Online Wage Library, available at http://www.flcdatacenter.com.

The parties to NAFTA should reform the TN visa to better protect workers and inform them of

their rights. The U.S. government should establish oversight of the program such that workers’

rights are enforced, the recruitment process is transparent, and workers gain meaningful access

to justice when their rights are violated.

CONCLUSION

COMPREHENSIVE RECOMMENDATIONS

PROHIBIT FEES AND HIRING PRACTICES THAT RESULT IN ECONOMIC COERCION: Recruitment and

contract breach fees should be prohibited in the TN visa program. The TN visa should be legislatively

reformed to give workers control over their visas. If employer sponsorship of visas is maintained, staffing

agencies should be prohibited from hiring workers on TN visas.

CREATE OVERSIGHT AND ENSURE ACCESS TO JUSTICE: The Department of Labor should oversee

the TN visa program and should require vetting and certification of TN employers before they can hire TN

workers. The Department of Labor should rigorously protect whistleblowers and enforce anti-retaliation law.

The Department of Labor should work with the Equal Employment Opportunity Commission to rigorously

monitor and enforce anti-discrimination law with respect to TN workers.

The Department of Labor Wage and Hour Division should rigorously monitor and enforce wage protections

for TN workers. The Department of Labor should work with the Department of Homeland Security U.S.

Citizenship and Immigration Services to facilitate the process by which workers change employers.

U.S. Consulates should provide TN workers with information on filing complaints based on violations of their

rights with the Department of Labor and the Equal Employment Opportunity Commission.

CREATE TRANSPARENCY: The Department of Labor should create a database of certified TN employers

and available jobs so that workers can verify the existence of jobs, apply for jobs directly rather than through

recruiters, ensure the jobs meet their professional qualifications, verify the terms of their employment, verify

their wages, view other available jobs while in the U.S., apply for positions directly with potential employers,

and change employers. The database should be available in real time so that workers can ensure they do

not fall victim to fraud.

Data regarding race, color, religion, sex (including pregnancy, gender identity, and sexual orientation),

national origin, age, and disability for TN workers should be collected and maintained in a publicly available

database so that discrimination can be monitored and the law can be enforced.

Authorizing Statute: North American Free Trade Agreement Implementation Act (NAFTA

Implementation Act), Public Law 103-182 (1994)

Relevant Sections of the Immigration and Nationality Act: INA 214(e) (8 U.S.C. 1184(e));

INA 214(j) (8 U.S.C. 1184(j).

Governing Regulations: 22 CFR 41.59; 8 CFR 214.6(c).

Relevant Sections of the Foreign Affairs Manual: 9 FAM 402.17

Addendum: Relevant Law