This article was originally published by Slate.
On Tuesday, writing in Politico magazine, Eric Posner, a University of Chicago law professor, and Glen Weyl, a researcher at Microsoft, reimagined the U.S. immigration system. Instead of corporations and families sponsoring immigrant visas like in today’s system, they proposed that individual citizens could sponsor migrant workers who would work for them and be paid below-market wages in return for the sponsorship.
This might sound to you like indentured servitude. The authors would prefer you think of it as a support system for “impoverished foreigners” and “working-class natives.”
Take Sofia, an imaginary Paraguayan immigrant who, according to Posner and Weyl, “grew up in a village” and “endured hardships that few Americans can imagine.” Eager to make money in the United States, she moves to West Virginia to work for Mary, a laid-off chicken factory worker, who is also imaginary and is starting a dog-walking business. Mary would offer “a room in her basement, meals and $5 an hour.”
While that’s a garbage deal for Sofia, what’s worse is this cheap labor scheme already exists in a limited form in the United States today. It’s called the au pair program, a temporary work program under the J-1 visa, which was created to promote cultural exchange.
Au pairs are (mostly) young women who spend a year or two in the United States living with host families and doing 45 hours of child care a week in return for room, board, and $4.35 an hour. The State Department is supposed to run the program, but in reality provides very limited oversight and outsources the program’s day-to-day management to private companies that charge both the au pairs and host families thousands of dollars to participate.
Posner and Weyl appear to have taken inspiration for their visa from this arrangement. “While the program might seem crazy at first,” they write, it is “not that different from the au pair program.”
Like in the au pair program, there would be virtually no government oversight. They propose “drastically reducing the role of government bureaucrats” in immigration. Under their program, the government would “merely run security checks on migrants.”
What about the clear potential for abuse without government watchdogs?
Citing an expose I wrote about au pairs last spring, also for Politico, they suggest their program would be fine because the au pair program suffers from only “occasional exploitation.”
In reality, many au pairs face regular abuse including sexual and physical assault, food deprivation, extra work, withheld wages, and even robbery by their sponsors, along with threats of arrest or deportation as retaliation for complaining about poor conditions.
These issues aren’t just occasional. In Politico, I published data from then-unreleased State Department memos showing that the government had been concealing the existence of thousands of complaints about the program from the public.
Overlooking the data, Posner and Weyl have faith migrant workers wouldn’t be abused. “It is hard to demonize the person who lives in your basement,” they write.
Actually, it’s pretty easy.
One au pair told me she was locked in the basement as a punishment. “The lady locked me in the basement, cut down on my phone, internet and tried to steal my passport just because I complained,” she said. “I thought I was gonna die.” She also said she was only fed a yogurt, an apple, and a bottle of water a day.
For a migrant worker not locked in the basement, Posner and Weyl believe she “would be free to leave at any time if she did not like the conditions of her employment.” They say “the agency that runs the [recruitment] website will find a new match” for her. (This is how it works in the au pair program, too.)
But technically having the right to walk away doesn’t mean someone is actually able to do so. Since the visa is tied to employment (and since the migrant worker potentially owes debts to a recruiter), leaving can become hard.
For au pairs, one of the most feared parts of the program is rematch—where the au pair has to find a new family through their agency’s website after being kicked out or having left. If you can’t find anyone, or if the company just doesn’t like you (and doesn’t offer any new families as options), you could easily find yourself being deported by the company. This causes au pairs to stay with dangerous families rather than risk leaving, or to enter into new dangerous situations in order to avoid being deported or becoming an undocumented immigrant.
“When an au pair is in rematch, she has a strong desire to stay in your country in a legal manner,” another au pair told me, saying that made her judgment “totally clouded.”
Beyond the abuse, Posner and Weyl don’t seem to understand the labor laws and basic legal structure that govern the au pair program.
“All health and safety laws would apply to [the migrant workers],” they write. One of those laws is the Fair Labor Standards Act. That law entitles workers to a $7.25 minimum wage, including state minimum wage if it is higher. It also limits wage deductions below minimum wage for things like housing when the situation primarily benefits the employer (like when the employee lives in their basement and works in their house or for their home business).
Paying $5 an hour is illegal, and exempting noncitizens from the minimum wage is not applying “all health and safety laws” in good faith.
What about the $4.35 an hour wage for au pairs? Au pair companies attempt to get around the Fair Labor Standards Act by citing the program’s classification as a cultural exchange. This is a con: Companies “market the program differently to host families and to au pairs,” a 2014 State Department analysis acknowledged. “For au pairs, the program is often advertised as an easy way to live with an American family, learn about American culture, take classes and earn some money.” For host families, it’s “an affordable, reliable and flexible way to obtain quality child care.”
The au pair companies’ deceptive strategy is faltering, though, and they are facing a massive class-action lawsuit, certified last week, for wage theft and antitrust violations.
But Posner and Weyl, who correctly identify au pairing as a “nanny migrant-labor program used by upper-middle class American families,” don’t even have the cultural exchange as a smokescreen element in their proposal. Legally, it just doesn’t work.
There is room to debate whether the au pair program should be reformed rather than eliminated, given that without the program foreign domestic labor would slide entirely into the shadows and be ripe for the same, or worse, exploitation. But the model should not be expanded to other industries.
It’s hard to look at the au pair program and not recognize there’s a dire need for reform. But Posner and Weyl share that blind spot with Congress.
When you recognize the inequality of only the rich having access to indentured servants, the appropriate reaction is to support ending that practice, not expanding that access to everyone.