Diplomats' Abused Workers Get Visa Breaks to Pursue Lawsuits

SILVER SPRING, Md. -- Employed by a Kenyan diplomat, Beatrice Oluoch followed her boss to America expecting to continue her comfortable nanny position at reasonable pay.

Instead, Oluoch says she was made to work 13-hour days, denied overtime pay and barred from leaving the house. She cooked and cleaned during the day and says she was on-call round-the-clock for her employer's two young children.

Her salary? $150 a month.

She felt isolated and feared retaliation, anxious if she publicly reported the mistreatment she could be fired, lose her visa and get deported. So she ran off with a friend and is now suing her powerful boss for human trafficking and labor violations, hoping a new federal policy will give her time to remain in the country as she applies for a new visa and pursues her abuse claims in court.

"Right now, if I go back (to Kenya) I am not a free person," she said recently.

The policy change, announced by U.S. Citizenship and Immigration Services in March, permits former employees of diplomats who are suing their bosses to remain in the country and legally work while their cases are pending. Lawyers and advocates say the change, though unlikely to result in a wave of new lawsuits, eases the deportation threat for abused workers who have fled their jobs and lost their visas while enabling them to move out from society's margins as they report mistreatment.

The change comes as part of a concentrated federal effort to fight human trafficking.

"For us, it's exciting because it does remove barriers to people coming forward if they do have valid allegations of this type of abuse," said Luis CdeBaca, a State Department ambassador responsible for combating human trafficking.

Oluoch arrived in Bethesda, Md., on a visa in July 2006 to serve as a nanny to Stella Kerubo Orina, who at the time worked for the Kenya Mission to the United Nations. Oluoch said she had worked for her in Kenya without problems, but the job in America immediately deteriorated.

She said she was perpetually on call to her boss's two young children, could not use the telephone, suffered verbal abuse and had her passport confiscated. Though her initial contract guaranteed her $8 per hour, she said she was paid just $150 one month and $50 the next, with the remaining $100 sent to her family in Kenya.

Oluoch's lawyer, Aaron Uslan, likens his client's employment to slavery and says Oluoch stands to directly benefit from the new policy.

"How can you receive due process, how can these people avail themselves of the judicial system if they're deported back to their home country?" Uslan asked. "Diplomat wins again. Not only do they have immunity, but they're disadvantaged by the fact that these victims are deportable."

Oluoch fled in September 2007 and found refuge with friends in Frederick, Md., where she remains. But since her visa has been terminated, she is here illegally.

Orina has left her post and now works in Nairobi with the Kenyan Ministry of Foreign Affairs. She is on leave there until mid-July and did not respond to phone messages that officials there agreed to forward.

The policy change applies to holders of specific visas, known as A-3 and G-5, which are issued to foreign employees of ambassadors, diplomats and consular officers — workers who often are poor, uneducated and susceptible to abuse. Because the visas are tied to their employment, once workers leave their job, they lose their visa — and with it, their legal right to stay in the country.

Olouch is in the process of applying for a T visa, which is available for human trafficking victims who cooperate with law enforcement in criminal investigations. But those visas are hardly guaranteed. The application process is cumbersome and time-consuming, some allegations may not meet the human trafficking threshold and some victims may be hesitant to cooperate with authorities. That difficulty, lawyers and advocates say, is why the new protection is so critical.

"You've got the language barriers, the fear, the not understanding how things work in the U.S. It could be that they're from countries where police are corrupt," said Janie Chuang, a professor specializing in human trafficking at American University's Washington College of Law. "You worry about retaliation, you worry about what's going to happen to your family members."

Though the policy allows workers to stay while they seek compensation, there's no guarantee they'll be able to remain once the case ends. Some workers may be eligible for special visas for human trafficking victims, but many others may have no path to permanent citizenship. The lawsuits themselves are hardly slam dunk cases, either. Diplomats generally enjoy some level of immunity shielding them from court action, with some critical exceptions — such as if a foreign government waives the immunity or the diplomat has changed posts.

A 2008 Government Accountability Office report identified 42 foreign workers since 2000 who reported being abused by diplomat bosses in the U.S., but said the number is probably higher, in part because of workers' fear of making public complaints. Federal agencies looked into 17 of the cases for human trafficking, visa fraud or labor violations; of the remaining 25 employees, nine resulted in lawsuits.

Some cases do, however, result in criminal charges. Last week, an Italian government worker posted at the San Francisco consulate and his wife were arrested and charged with turning a Brazilian woman into an indentured servant. The couple denies the allegation.

The new policy derives from the 2008 reauthorization of a federal anti-trafficking law, which directed the Department of Homeland Security to permit visa holders to remain in the country long enough "to fully and effectively participate in all legal proceedings." The protection lasts for a year but can be extended.

"While people can sue from abroad, there is so much work that has to be done in person," said Cindy Liou, an attorney with Asian Pacific Islander Legal Outreach, which helps human trafficking victims. "Having this option and being able to get this work done more quickly without having to rely on law enforcement is, again, a very empowering thing for a client."