US embassy cable - 05KUWAIT1711

UNCLAS SECTION 01 OF 05 KUWAIT 001711 
 
SIPDIS 
 
FOR CA/FPP AND CA/VO/F/P 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: CVIS, KFRD, PHUM, KU 
SUBJECT: EMBASSY KUWAIT VALIDATION STUDY ON DOMESTIC 
SERVANTS 
 
REF:  04 STATE 172283 
 
1. (SBU) SUMMARY: Embassy Kuwait has completed a 
nonimmigrant visa validation study on domestic employee B1 
visa recipients.  The purpose of this study was to measure 
the overstay and non-return rates for B1 visa holders with 
Kuwaiti sponsors, as well as the B1 sponsors' compliance 
with U.S. labor regulations as required by the Fair Labor 
Standards Act.  Results taken from interviews with the B1 
holders themselves, their Kuwaiti sponsors, and Department 
of Homeland Security entry and exit records indicate an 
overstay rate of nearly 20 per cent among the B1 visa 
holders and nearly universal violations of U.S. labor 
standards by the Kuwaiti sponsors. 
 
2. (SBU) WHY DO A VALIDATION STUDY ON MAIDS?  As a class, B1 
domestic employees are some of the least qualified NIV 
applicants at post. They are usually young, single, third 
country nationals who earn low wages and have little history 
of international travel.  As economic migrants, maids have 
few compelling ties to Kuwait or their countries of origin 
and can be subject to difficult working conditions.  Local 
newspapers often carry accounts of domestic employees 
victimized by physical and sexual abuse.  Some opt to run 
away, often seeking shelter at their embassies.  Domestics 
have limited protections under Kuwaiti law and the Kuwaiti 
labor law does not apply to domestic servants.  According to 
press reports summarizing Kuwaiti immigration figures, 
approximately one in six people living in Kuwait is a 
domestic servant (400,000 of 2.645 million.) 
 
3. (SBU) However, domestic servants are an integral part of 
the Kuwaiti household.  Many Kuwaiti families employ at 
least one domestic servant, and Kuwaitis expect to be able 
to take their domestics with them when they travel. It is 
not uncommon for a Kuwaiti family to withdraw its visa 
applications for a summer trip to Disneyworld if the maid's 
application is denied.  Kuwaitis take refusal of their 
maids' visa applications as a personal affront.  This can be 
an even more contentious issue among high-ranking Kuwaitis, 
resulting in official inquiries by the Kuwaiti MFA.   B1 
domestic visa applications are among the most difficult and 
time-consuming NIV applications, especially during the 
summer travel season.  The interview itself requires 
speaking with the maid and the sponsor, as well as reviewing 
the contract.  Refusals usually result in angry sponsors who 
will spend several minutes arguing with consular staff at 
different windows.  It is also common for sponsors to 
reapply for their refused maids several times over the 
course of the summer travel season. 
 
4. (SBU) For NIV officers, most B1 applications present at 
least one of the two following ineligibilities: 
 
a)   most B1 applicants have a difficult time showing strong 
ties to a residence outside of the United States, leading to 
ineligibilities under INA 214(b); and 
 
b)   given the poor wage and labor conditions in Kuwait, 
many Kuwaiti sponsors fail to complete a contract in 
accordance with the Fair Labor Standards Act as required by 
9 FAM 41.31.  This also results in refusals under 214(b) or 
221(g). 
 
These ineligibilities are so prevalent among the B1 
applicant population, that even when consular officers 
approve B1 applications here, there is a strong suspicion 
that the B1 holder may overstay her visa, and that they 
employer will not comply with the conditions of the labor 
contract.  In order to test these suspicions, post decided 
to perform a visa validation study on B1 domestics that 
would measure B1 overstay rates and sponsor compliance with 
the required labor contract. 
 
5. (U) METHODOLOGY: In all applicable areas, this study 
followed the methodological guidance suggested in 04 STATE 
172283. Deviations from the prescribed methodology were 
primarily the result of this study's relatively small sample 
size and the utilization of all available cases over the 
course of the sample period.  With this guidance in mind, 
post set out to establish the overstay rates and contract 
compliance for third country national B1 visa recipients. 
The case parameters are as follows: 
 
Target Range: One Calendar Year: 01 May 2003 - 31 April 2004 
(187 approved cases).  These dates were selected in order to 
give all visa recipients the opportunity to travel, and also 
as a further guarantor of objectivity; none of the issuing 
NIV officers during this period are still at post. 
 
Number of visas issued per month per target period: Average 
15.75 
 
May 32 
June 40 
Jul 25 
Aug 17 
Sep 15 
Oct 6 
Nov 4 
Dec 7 
Jan 14 
Feb 0 
Mar 8 
Apr 17 
 
Maximum anticipated percentage of overstays: 10 percent of 
cases, or 19 total. (For the purpose of this study, 
overstays include visa non-returns as well.  As it happened 
in the final results, there were very few overstays at all. 
Most B1 visa holders who overstay simply don't leave.) 
Maximum anticipated percentage of contract compliance: 50 
percent. 
 
Proposed sample size per month: All approved cases 
 
Random Starting Point: 01 May 2003 
 
Sample intervals employed in sample selection: 1 (100 
percent sample rate of all issued visas) 
 
6. (U) Having established the above mentioned parameters for 
case selection, post created a plan for collecting results: 
 
Pull applications of issued B1 applicants from post records. 
 
Enter applicant data into an Excel spreadsheet, listing visa 
holders by name, nationality, date of birth, sex, visa 
number and issuance date.  In order to test B1 sponsor 
compliance with U.S. labor regulations, post also added an 
additional column to record the visa holder's reported 
monthly salary in the United States. 
 
Contact B1 holders by telephone to establish the following 
results: confirmed overstay, returned to host or other 
country, inconclusive results (and why), nonuse of visa, 
suspected fraud, and for those that did travel, monthly 
salary in the US. 
 
Follow up: send spreadsheet to DHS for confirmation on visa 
holder travel records, including overstay and non-return. 
 
7. (SBU) TESTING RESULTS: TRAVEL HISTORY AND OVERSTAY RATES 
BY TELEPHONIC INTERVIEW.  In December 2004, post NIV FSN 
staff began calling B1 visa holders to obtain information on 
their travel and salary history in the United States. The 
NIV section chief monitored many of these phone calls.  The 
most striking result of these conversations was the obvious 
unreliability of this method of research.  In many of the 
telephone calls, Kuwaiti sponsors refused to allow their 
domestic employees to speak with the Embassy. In cases where 
the domestics could speak on the phone, their sponsors were 
often heard in the back ground, feeding the "correct" answer 
to the domestic, or ordering her not to answer certain 
questions.  The fact that so many of these interviews were 
conducted under obvious coercion makes these initial results 
highly suspect.  The fact that the answers themselves were 
unverifiable, in post's opinion, weakens the reliability of 
results obtained solely by telephonic inquiry to an even 
greater degree. 
 
Results of "confirmed overstay," and "returned to host or 
other country" would be impossible to verify by telephone 
inquiry. Post found several cases where sponsors claimed 
their domestic employees had returned to their home country, 
or were no longer in their employ, when DHS records later 
showed the same individuals had actually never departed the 
US.  Post also suspects that in some instances, employers 
forced other household staff to pose as the B1 visa holder 
during the Embassy's telephonic inquiry.  Given the 
contentious sponsor responses to Embassy inquiries, the 
coercive environment under which many by visa holders did 
respond to inquiry, and the ultimate unverifiability of 
telephonic responses to Embassy inquiries, post would have 
to categorize so many of these inquiries as "inconclusive" 
or "suspected fraud" so as to undermine the results of the 
entire study. 
 
8. (SBU) TESTING RESULTS: TRAVEL HISTORY AND OVERSTAY RATES 
BY DHS RECORDS.  Fortunately, the DHS district office in 
Rome was able to provide post with travel records for all 
187 B1 visa holders in post's study.  This is the cavalry 
coming to the rescue: the DHS records quite literally saved 
this study.  For the reasons discussed above, the telephonic 
records were unreliable.  The DHS travel records however 
provided hard evidence for the B1 holders' travel history 
and overstays, and when compared to the results of the 
telephonic inquiries, also showed a pattern of fraud and 
misrepresentation on the part of their Kuwaiti sponsors. 
Both sets of records, when used together, were actually 
quite useful.  However, post is using the DHS records as the 
actual account of the B1 visa holder travel history.  Upon 
receipt of these results, post counted raw and revised 
numbers for travel and overstay rates. Post also ran for 
overstay rates based on nationality, age and sex.  The 
initial results for our 178 B1 issuances are listed below: 
 
Confirmed Overstays: 25 
Departed United States, or in Status: 135 
Inconclusive / Did Not Use Visa:  48 
Suspected Fraud: 12 
 
9. (U) This is a modification of the response categories we 
originally intended to use as described in para. 4, though 
post feels these response parameters more accurately 
describe the results of our inquiries.  A brief explanation 
of these response categories follows: 
 
a)   Confirmed overstays are all cases counted as "Confirmed 
Overstay" or "No Departure" in DHS records. There are a 
total of 25 cases in this category consisting of four (4) 
overstays, and twenty one (21) no departures. 
 
b)   Departed United States, or in status: DHS records 
indicate that these visa holders traveled to the United 
States and departed within the time allotted by DHS agents 
at the port of entry.  The "return to Kuwait or other 
country" was dropped from this provision because: first, it 
is impossible to tell where the traveler returned to, and 
second, because for the purpose of this study, we are only 
concerned with their travel to the United States. 
 
c)   Inconclusive / Did Not Use Visa: DHS travel records 
showed "No Record" next to 48 listed B1 visa holders in our 
study.  Discounting the possibility of widespread failure of 
DHS entry-exit tracking systems, we can only assume that 
these individuals never used their visas and did not travel 
to the United States.  In any case, the results are 
inconclusive. 
 
d)   Suspected Fraud: These consist of twelve (12) cases 
where Kuwaiti sponsors indicated in telephonic interviews 
that the B1 domestic had returned to Kuwait or her home 
country, while DHS records later showed no departure from 
the United States. 
 
10. (SBU) RAW OVERSTAY RATES: The final results based on DHS 
records indicate that there were 25 confirmed overstays out 
of 178 issued B1 visas, an overstay rate of 14 per cent. 
When we discard the 48 inconclusive cases and look only at 
overstay rates for confirmed travelers, we see 25 out of 
130, and overstay rate of 19 per cent.  This is 
significantly higher than the 10 per cent we anticipated 
before conducting the study. 
 
11. (SBU) OVERSTAY RATES BY NATIONALITY, AGE AND SEX: 
 
OVERSTAY NATIONALITIES. Post also broke down the travel and 
overstay rates by nationality, age and sex. Looking at the 
three largest applicant groups, Indians, Filipinas, and Sri 
Lankans, we see the following results. The attendant numbers 
respectively list number of visas issued, number of 
confirmed travelers, number of overstays, and overstay 
percentage for confirmed travelers: 
 
Indian: 71-47-8: 17 per cent 
Philippines: 64-51-8: 15 per cent 
Sri Lankan: 20-13-4: 30 per cent 
 
The overstay rates for Indians and Filipinas, while higher 
than the 10 per cent initially expected, is roughly in line 
with the overall numbers for post's B1 population during the 
sample period. The overstay rate for Sri Lankans, while 
considerably higher than the Indian and Filipina results, is 
taken from a small enough statistical sample (only 13 
confirmed travelers) to discourage any broader conclusions. 
 
OVERSTAY AGE: The study's greatest surprise came with the 
age of the confirmed overstays.  While we expected most 
overstays to be in their early to mid twenties, the average 
age of overstaying B1's was actually closer to 40.  Removing 
one outlier who was born in 1937, the average date of birth 
for the overstaying B1's was 1965. There was no clear mode 
year of birth; two overstays were born in 1952 and 1965 
each, with the remaining twenty samples evenly distributed 
between 1952 and 1979. The median year of birth for our 
overstay population was also 1965. 
 
OVERSTAY SEX: All overstays were female. However with only 
eight males among the original 178 visas holders, we would 
want to see a larger male sample before drawing any 
conclusions about a female proclivity to overstay. 
 
11. (SBU) TESTING RESULTS: B1 SPONSOR COMPLIANCE WITH THE 
FAIR LABOR STANDARDS ACT. 9 FAM 41.31 requires that foreign 
nationals sponsoring personal employees for B1 travel to the 
United States comply with the Fair Labor Standards Act with 
regard to payment of wages, overtime compensation and tax 
laws. The FAM also requires the sponsor to provide for the 
employee's transportation, food, accommodation, and medical 
treatment in the United States.  Prior to visa issuance, the 
Embassy requires sponsors and their employees to sign a 
contract guaranteeing employee rights and privileges while 
working in the United States.  This contract specifically 
describes minimum salary requirements regarding the 
prevailing wage in five major American cities, and advises 
sponsors that their employees are to keep their own 
passports with them at all times in the United States. 
Given the typical 80 hour work week performed by most 
domestics here, the Consular Section for the purpose of this 
study figures a salary of about 600 USD per month, in 
addition to all food, transportation and lodging costs, to 
be in keeping with the minimum requirements of U.S. labor 
regulations.  Given the wide discrepancy between Kuwaiti and 
American labor standards (domestic employees  earn an 
average salary of about 160 USD per month; sponsors keep 
their employees' passports; legal protections against 
physical and sexual abuse are inadequate), post was eager to 
follow up on Kuwaiti sponsor pledges to adhere to U.S. labor 
standards.  The results of this inquiry were discouraging, 
and in and of themselves, may call for a re-evaluation of 
post policy on B1 visa applications. 
 
12. (SBU) Post telephonic interviews in December 2004 showed 
that of the 102 respondents (either sponsors or the B1 
domestic), 85 were paid less than 600 USD per month, the 
study's minimum standard for compliance with the Fair Labor 
Standards Act.  For Kuwaiti sponsors, this translates into 
an 83 per cent rate for noncompliance with US labor 
regulations, significantly higher than the 50 per cent 
originally expected.  Furthermore, given the difficulties 
described in paragraphs 5 and 6 in conducting these 
interviews, the threat of coercion under which the B1 
holders themselves were obviously responding, and the 
evidence that a number sponsors were lying about their 
employees' illegal immigration to the United States, we 
suspect that sponsor noncompliance with prevailing wage laws 
in the United States is actually closer to 100 per cent. 
 
13. (SBU) CONCLUSIONS: The results of this visa validation 
study support two conclusions: a) the overstay rate for B1 
domestics issued at Kuwait and traveling to the United 
States is nearly 20 per cent, roughly one in five. b) Among 
Kuwaiti sponsors of B1 domestic laborers in the United 
States, there is nearly universal noncompliance with United 
States labor laws. 
 
14. (SBU) RECOMMENDATIONS: In light of this new evidence, 
post intends to take a number of steps to decrease the non- 
return rate for B1 domestics, and to ensure compliance with 
U.S. labor standards while in the United States. 
 
a) Post will create a "blacklist" of Kuwaiti sponsors whose 
previously sponsored domestic employees have violated their 
visa status, or who themselves have failed to comply with US 
labor regulations as stipulated in the agreement they signed 
prior to B1 visa issuance.  This will be accomplished 
through the creation of a Word document maintained at post 
including the names of the Kuwaiti sponsors to be manually 
checked by an adjudicating consular officer at the time of a 
B1 application.  Sponsors included on this list will be 
unable to sponsor future B1 visa applications. 
 
b) When adjudicating B1 applications, post should consider 
revising standards for what constitutes compelling ties to 
overcome the presumption of immigrant intent.  While our 
study did show that overstaying B1's tend to be around 40 
years of age, neither nationality nor gender proved to be 
useful indicators in predicting immigrant intent. Post 
should return to the applications for the overstaying B1's 
and look for any other commonalities: travel history, 
salary, time with employer and family status are probably 
good places to start. 
 
c) The most challenging repercussion of this study regards 
sponsor obligations to the employee's fair wage and working 
conditions.  9 FAM 41.31 N9.3-3 states that employers must 
sign a contract guaranteeing B1 worker prevailing wages and 
accommodation.  Applications which fail to complete this 
contract may be refused under Section 214(b) or 212(a)(4) of 
the INA.  The results of this study clearly suggest that 
Kuwaiti sponsors routinely and almost universally complete 
this agreement in bad faith.  Post has always suspected that 
these agreements are disregarded once the sponsor and 
employee arrive in the United States, but to continue 
issuing B1 visas in light of this study's evidence would be 
to turn a blind eye to serial violations of U.S. labor laws 
and FAM regulations.  Conversely, refusing all B1 
applications out of hand is hardly realistic either. 
 
One possible solution might be to require salary statements 
and bank records from B1 applicants.  As most domestic 
employees in Kuwait are paid irregularly and in cash, this 
would automatically remove most applications from 
consideration.  Visa officers' experience on the line, 
however, indicates that there is a small subset of domestic 
employees here who are paid well and at regular intervals. 
These applicants are usually able to show some kind of 
record indicating regular payment of salary.  They also tend 
to have several years service with their employers and a 
history of international travel.  Unfortunately, such 
applicant's represent a very small portion of B1 applicants, 
probably around 5 per cent.  Raising the standards to 
overcome immigrant intent to something closer to these 
levels, however, is probably the only way to decrease post's 
B1 overstay rate and to ensure cooperation with U.S. labor 
laws. 
LeBaron