U.S. panel reverses stand on J-1 exchange program

S.C. firm will be allowed to bring in foreigners to learn hospitality industry

November 20, 2003|By Walter F. Roche Jr. | Walter F. Roche Jr.,SUN STAFF

Prodded by a highly critical court ruling, a State Department panel reversed itself and voted unanimously yesterday to allow a South Carolina firm to resume bringing foreign students to the United States to learn the hospitality industry.

In a nine-page decision and 44-page recap of its findings in the case, the three-member panel concluded that its earlier decision to bar the American Hospitality Academy's participation in the J-1 exchange program was not supported by the facts. While AHA acknowledged that it had violated program requirements, the panel said many problems had been corrected and described the revocation action as "extreme."

"This is not to suggest that AHA runs a perfect program," the panel said. "There are clearly areas with room for improvement."

The panel said it expected the State Department and AHA "to work together with due diligence" to bring about any needed changes.

Yesterday's decision followed two days of hearings in May, in which State Department officials tried to back up the charges that led to the revocation a year earlier. The hearings were ordered nearly a year ago by U.S. District Judge Patrick M. Duffy, sitting in South Carolina, who concluded that the State Department's original action had been arbitrary and capricious, and "universally and inexplicably devoid" of evidence.

Laura Reiff, AHA's lawyer, said yesterday that Duffy's ruling forced the appeals panel members "to sit down and rethink their position." Once new hearings were ordered, she said, the State Department did no further work to back up its revocation decision.

Reiff said she is preparing to meet with State Department officials to determine how AHA's exchange program can get back in operation as soon as possible.

"We're obviously very pleased," she said.

State Department officials and AHA President Cindi Reiman did not respond to requests for comment.

AHA, which operates in South Carolina and Orlando, Fla., brought hundreds of foreign students to the United States for up to one year under the J-1 visitor exchange program before that authorization was abruptly revoked on April 1 last year. Department officials alleged that AHA was running a work program rather than providing a bona fide training program.

The action followed a site inspection by a State Department official who found 14 violations of program rules. AHA quickly appealed, but the review board upheld the department action. That led to the court ruling.

In an article last year, The Sun and the Orlando Sentinel described how students brought to the United States by AHA had been working for less than minimum wage at jobs that included scraping goose dung from boat docks.

AHA began bringing in foreign students in 1998. Under its program, foreign trainees generally paid a $1,000 entry fee and were provided with housing and given a $300-a-month stipend while on the job. AHA collected $1,300 to $1,600 a month from hotels and resorts for each assigned trainee.

In its decision yesterday, the appeals board noted that AHA acknowledged violations of eight program rules, including accepting interns who weren't proficient in English, but concluded that they were not sufficient to warrant revocation.

"To support the extreme sanction of revocation, it is not enough for [the department] to simply establish that one or more of the violations may have occurred," the panel said, adding that the agency had the additional burden of proving that the violations were willful or the result of gross negligence.

The panel noted that while some of the six other violations were serious, they had been contested by AHA and were the subject of conflicting testimony during two sets of hearings.

For instance, the panel said that "for a time," AHA did not have formal training agreements with facilities where AHA interns were assigned, a program requirement. Eventually, the decision states, "agreements were put in place by AHA."

The panel was critical of the State Department's main witness at the May hearings, consultant Yael Nagler, who visited 20 properties where AHA trainees had been assigned.

"She conducted no personal interviews with past or present AHA trainees or AHA managers," the ruling states, noting that Nagler did not submit a written report and much of her testimony was based on hearsay.

The panel also disputed the conclusion of a key State Department official, Stanley Colvin, who said he did not believe AHA's program could be brought into compliance with J-1 program rules.

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