Florida Law Review
Volume 63
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Issue 4 Article 3
2-8-2013
e Wonderful World of Disney Visas
Kit Johnson
kjohnson@law.und.edu
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Kit Johnson, e Wonderful World of Disney Visas, 63 Fla. L. Rev. 915 (2011).
Available at: hp://scholarship.law.u.edu/r/vol63/iss4/3
915
THE WONDERFUL WORLD OF DISNEY VISAS
Kit Johnson
*
Abstract
International workers play an important role in perpetuating the
carefully crafted fantasy that to visit the Walt Disney World Resort in
Orlando, Florida is to be transported to far-off destinations around the
globe. This Article examines how Disney has filled its need for these
workers in two ways. For one, Disney has used a blend of chutzpah and
ingenuity to forge new federal law establishing the Q visa. Additionally,
Disney has dexterously used the existing J visa, along with an on-resort
academic program, to bring international workers to Florida as students.
An examination of Disney‘s immigration practices offers insight into
the larger questions of who designs and benefits from immigration laws.
These questions are particularly worthy of attention given the current call
for federal immigration reform.
I proceed by detailing the history of the Q visa law, which was
designed by Disney for its own needs—namely, to authorize ―cultural
representatives‖ to travel to the United States for short durations and to
work in jobs where they share aspects of their home countries with the
American public. This present study is the first historical treatment of the
Q visa in the literature. I then discuss what Disney has appropriated from
its custom-designed immigration program. Next, I look at the J visa and
how Disney has exploited it by analyzing the history of the J visa, which
was created during the Cold War to cultivate an appreciation for and
familiarity with American society. I then look at Disney‘s International
College Program, which is intended to provide compliance with the J visa
law while ensuring a ready stream of available labor for Disney‘s
mammoth Florida resort operations. A thorough exploration of the facts
shows that Disney‘s International College Program is not consistent with
the original statutory intent. Scrutiny of Disney‘s Q and J visa programs
highlights weaknesses in our current immigration system and illustrates
how those flaws might affect future immigration reforms.
I. INTRODUCTION: TALE AS OLD AS TIME ....................................... 917
II. HEIGH-HO: WORKING FOR DISNEY ............................................. 918
III. WHEN YOU WISH UPON A STAR: THE Q VISA AND THE DISNEY
CULTURAL REPRESENTATIVE PROGRAM ..................................... 920
* Copyright © 2011 by Kit Johnson. Visiting Assistant Professor at the University of North
Dakota School of Law, J.D. 2000, University of California at Berkeley, Boalt Hall School of Law. I
am very grateful to Professors Eric E. Johnson, Michelle Pistone, Linda Bosniak, Huyen Pham,
Barbara Schwartz, Rick Su, Wendi Adelson, and Joe Rosen for their comments and insights. I also
thank Jan Stone for her unparalleled research assistance and my mom, Janice Marcin, for her
thoughtful edits.
1
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A. “Something There that Wasn‟t There Before”: Creating
the Q Visa ........................................................................... 921
B. The Bare Necessities: Legal Requirements for Q Visas ..... 925
C. Part of Your World: Disney‟s Cultural Representative
Program .............................................................................. 927
D. If I Didn‟t Have You: How Cultural Representatives
Benefit Disney ..................................................................... 930
E. Mine, Mine, Mine: The Q Visa Success .............................. 935
IV. WHISTLE WHILE YOU WORK: THE J VISA AND DISNEY‘S
INTERNATIONAL COLLEGE PROGRAM ......................................... 937
A. It‟s a Small World: The History of the J Visa ..................... 937
B. We‟re All in This Together: Disney‟s J Visa
Programs ............................................................................ 941
1. The Emperor‘s New School: The Academic
Exchange Experience ......................................................... 941
a. Bibbidi-Bobbidi-Boo: Disney‘s College Courses .. 946
b. Zip-a-Dee-Doo-Dah: Orientation,
Disney-Style ........................................................... 946
c. With a Smile and a Song: On-the-Job
Experience at Walt Disney World .......................... 947
d. I Wan‘na Be Like You: Training Disney‘s
International Workforce ......................................... 949
2. Jolly Holiday: The Summer Work Experience ............. 950
a. Be Our Guest: ―Suitability‖ for the
Summer Work Experience ..................................... 951
b. Poor Unfortunate Souls: Summer Work
Travel as Neither an Educational nor a
Cultural Exchange .................................................. 951
3. Supercalifragilisticexpialidocious: The Australia/New
Zealand Work Experience ............................................ 953
4. Can You Feel the Love Tonight: Cultural Exchange,
Acculturation, and Disney‘s J Visa Programs .............. 955
C. Feed the Birds: Money and the Disney International
College Program ................................................................ 956
D. The Mickey Mouse March: Straying from Statute .............. 957
V. CONCLUSION: ENCHANTED ......................................................... 957
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I. INTRODUCTION: TALE AS OLD AS TIME
1
Philippe, a citizen of France, came to Florida to study wines. He not
only studies, he works. In fact, he works a lot. Five to six days a week, you
can find him at the Blizzard Beach hot dog stand in Walt Disney World.
His English is not considered good enough to interact with the guests on a
regular basis, so Philippe fills soft drink orders. On his one day off each
week, he takes a class called ―Wines of the World‖ through the Disney
International College Program. Like hundreds of other Walt Disney World
Resort employees, Philippe is able to work in the United States thanks to a
student visa.
The story of Philippe
2
is an embodiment of the American dream. Not
his American dream, of course. This is Disney‘s American dream. In 1923,
Walt Disney came to Hollywood with $40 in his pocket.
3
As of 2009, the
yearly revenues of his eponymous company exceeded $36 billion.
4
Almost
30% of those revenues came from the company‘s theme parks,
5
the largest
of which is Walt Disney World.
6
There is a direct connection between that
revenue and the thousands of internationals who come to the Florida park
each year, admitted to the United States on the student J visa as well as the
Disney-designed Q visa for ―cultural exchange‖ workers. The workers are
needed to run the resort‘s attractions, staff its concessions, and pick up its
garbage. They offer inexpensive labor and have themselves become part of
the Walt Disney World experience.
This Article takes a close look at Disney‘s immigration practices. It
uncovers how Disney has used the legislative process to create an
immigration scheme—the Q visa—inuring almost exclusively to its own
benefit. It also explores how Disney has taken singular advantage of a
provision of more ordinary immigration law—the J visa—and twisted it far
beyond its historically intended reach.
Disney‘s legislative and legal successes stem, in no small part, from the
truism uttered by the English novelist Samuel Richardson in 1740:
―[P]ower and riches never want advocates.‖
7
Or, as put by TNT‘s original
series Leverage: ―The rich and powerful take what they want.‖
8
1. Tale as Old as Time is a song from the Disney film Beauty and the Beast. ANGELA
LANSBURY, Tale as Old as Time, on BEAUTY AND THE BEAST (Walt Disney Records 1991).
2. Much of the research for this Article is the result of personal interviews conducted by the
Author with current and former Walt Disney World cast members. Names and other identifying
information have been changed to disguise the identities of individuals interviewed. Notes are on
file with the Author.
3. DANIEL GROSS, FORBES: GREATEST BUSINESS STORIES OF ALL TIME 126 (1996).
4. Press Release, Walt Disney Co., The Walt Disney Co. Reports Earnings for Fiscal Year
2009, at 2 (Nov. 12, 2009), available at http://corporate.disney.go.com/investors/quarterly_earn
ings/2009_q4.pdf.
5. Id. (reporting park and resort revenues of $10.7 billion for fiscal year 2009).
6. WALT DISNEY CO., FACTBOOK 2009, at 10 (2010).
7. SAMUEL RICHARDSON, PAMELA; OR, VIRTUE REWARDED 92 (Peter Sabor ed., Penguin
Books 1989) (1740).
8. E.g., Leverage (TNT television broadcast July 15, 2009).
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There can be no doubt that the Walt Disney Company wields both
power and riches. It is the world‘s largest media conglomerate
9
and has
been ranked by American consumers as the fourth most respected company
in the United States.
10
As for advocates, Disney has been noted as having
one of the largest legal teams in the world.
11
And those are only its paid
advocates—Disney has long been making informal advocates out of
legions of ―children of all ages.‖ As a parent of two young boys, I can
testify to the power held by the House of the Mouse.
Scrutiny of Disney‘s immigration practices provides a unique window
into how immigration laws are enacted and how they fare in practice. This,
in turn, sheds light on the immigration system as a whole. Immigration
reform seems always to be just around the corner.
12
And before creating
new law or reforming the old, it is useful to understand how such law can
and has been shaped—both in its inception and after its enactment—to
satisfy the interests of neither the political right nor the left, but rather to
benefit that particular class that has no want of advocates.
II. HEIGH-HO:
13
WORKING FOR DISNEY
Before jumping into the issue of whom the Walt Disney World Resort
is hiring and how, it is important to understand the scale of the resort and
the type of work necessary to keep it running.
Walt Disney World sits on 25,000 acres of land, making it roughly
twice the size of Manhattan.
14
The property houses four theme parks, two
water parks, a sports complex, and more than two dozen hotels, along with
scores of shops, restaurants, nightlife venues, and other attractions.
The resort opened in 1971 with the first of its four theme parks: the
Magic Kingdom.
15
The next park to open was Epcot in 1982, followed by
9. Hoover‘s Inc., Hoover‟s In-Depth Company Records: The Walt Disney Company,
available at 2010 WLNR 12673096 (last updated June 23, 2010) (detailing the Disney media
empire).
10. Laurie Burkitt, America‟s Most Reputable Companies, FORBES (Apr. 20, 2010),
http://www.forbes.com/2010/04/19/kraft-microsoft-google-pepsi-disney-kellogg-cmo-network-
america-least-reputable-companies.html.
11. Leigh Jackson, Modern Magic, LEGAL WK., Aug. 7, 2008, http://www.legalweek.com/
legal-week/interview/1181509/modern-magic (―Disney maintains one of the largest legal teams in
the world with 350 lawyers company-wide.‖).
12. On September 29, 2010, Senators Robert Menendez and Patrick Leahy introduced Senate
Bill 3932, the Comprehensive Immigration Reform Act of 2010. See, e.g., Senator Patrick Leahy,
Comment on the Comprehensive Immigration Reform Act of 2010 (Sept. 30, 2010) (transcript
available at 2010 WLNR 19526208). Prior to the introduction of the Act, President Barack Obama
publicly expressed the need for comprehensive immigration reform. See, e.g., President Barack
Obama, Remarks by the President on Comprehensive Immigration Reform at the American
University School of International Service, Washington, D.C. (July 1, 2010) (transcript available at
http://www.whitehouse.gov/the-press-office/remarks-president-comprehensive-immigration-reform).
13. Heigh-Ho is a song from the Disney movie Snow White and the Seven Dwarfs. ROY
ATWELL ET AL., Heigh-Ho, on SNOW WHITE AND THE SEVEN DWARFS (Walt Disney 2008).
14. JENNIE HESS ET AL., FODOR‘S WALT DISNEY WORLD 2010, at 142 (2010).
15. ALAN BRYMAN, THE DISNEYIZATION OF SOCIETY 3 (2004).
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Disney–MGM Studios in 1989 and Disney‘s Animal Kingdom in 1998.
16
While Disney‘s J visa international students work in all four theme parks,
its Q visa cultural exchange visitors work principally at Epcot and at
Animal Kingdom.
Disney requires a staggering number of workers to keep the resort
running. Some 65,000 people are currently employed there.
17
About 30,000
are hidden from the view of guests.
18
These ―backstage‖ employees include
dishwashers, landscapers, maintenance technicians, and business
executives.
19
Lawyers, who have no small part in making the magic
happen, are part of the backstage crew.
20
The remaining 35,000 or so resort employees hold ―guest-facing‖
positions, where they are visible to and interact with resort visitors. In
Disney-speak, these employees are ―onstage,‖ and thus they are dubbed
―cast members‖; instead of jobs, cast members have ―roles‖ for which they
have ―auditioned‖ rather than interviewed.
21
They do not wear uniforms
but ―costumes.‖
22
Critical to onstage employment is adherence to the ―Disney look‖
23
and
having the willingness to project the ―warmth and commitment‖
considered essential to the resort‘s unique feel.
24
As set forth in one Disney
manual:
For men, it means no facial hair, a conservative haircut
with no hair over the ears or the collar, no earrings, no
exposed tattoos, and no jeans. For women, no extremes in
dying hair or in makeup, and no long fingernails. We want a
conservative, professional look; we want our employees to be
warm, outgoing, and sincere. We don‘t want guests to be
distracted by oddities or mannerisms of the cast members.
25
All of the resort‘s international cast members, approximately 3,500 in
total,
26
occupy onstage roles.
27
As roughly 10% of the resort‘s onstage
16. Id.
17. Telephone Interview with Dr. Duncan Dickson, Assistant Professor, Rosen Coll. of
Hospitality Mgmt., Univ. of Cent. Fla., in Orlando, Fla. (Mar. 16, 2010) [hereinafter Dickson
Interview]; see also Jason Garcia, Parks‟ New Chief Faces Big Challenges, ORLANDO SENTINEL,
Dec. 29, 2009, at A1 (estimating the resort‘s workforce to be 60,000 in Central Florida).
18. Dickson Interview, supra note 17.
19. Id.; see also BRYMAN, supra note 15, at 11 box 1.2 (providing a glossary of Disney
language).
20. Jackson, supra note 11 (―Disney maintains one of the largest legal teams in the world
with 350 lawyers company-wide.‖).
21. See BRYMAN, supra note 15, at 11 box 1.2 (providing a glossary of Disney language).
22. Id.
23. Academic Exchange Experience: The Disney Look (General Guidelines), DISNEY INT‘L
PROGRAMS, https://www.disneyinternationalprograms.com/j1/look_guidelines.html (last visited Feb.
11, 2011).
24. BRYMAN, supra note 15, at 107.
25. Id. at 124.
26. Lydia Arledge, an international education consultant for Disney, notes that there are 2,500
5
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workforce, the international labor corps is carefully prescreened through
overseas auditions to ensure that they meet Disney‘s exacting standards.
28
The types of jobs performed by international cast members are varied
and, in some instances, dependent on the type of visa issued. For now, it is
sufficient to understand that onstage workers include concierges, character
performers, salespeople, quick-serve restaurant workers, and lifeguards.
29
III. WHEN YOU WISH UPON A STAR:
30
THE Q VISA AND THE DISNEY
CULTURAL REPRESENTATIVE PROGRAM
The Q visa is the cornerstone of international hiring at Walt Disney
World. The visa‘s parentage is unquestioned—it is commonly known as
―the Disney visa‖—but the history of how the visa came to be has never
been fully explored. This section details how the Q visa program became
law, sets forth the current statutory and regulatory requirements for Q
visas, assesses Walt Disney World‘s compliance with those requirements,
and examines what Disney stood to gain—and has gained—from the Q
visa.
The story of the Q visa is nothing short of a fairy tale—for Disney. For
those seeking immigration reform, it may be more of a cautionary tale
about the ability of an unusually skilled advocate to mold the law in order
to benefit a single entity.
available slots, as determined by available beds in the Disney housing complexes, for Q visa
participants and those J-1 participants in Summer Work Travel; she estimates another 1,000 J-1
international students work at Disney during each ―season,‖ which indicates that even more
international cast members (perhaps 4,500) come to Orlando each year. Interview with Lydia
Arledge, Int‘l Educ. Consultant, Walt Disney Co., in Greensboro, N.C. (Oct. 13, 2010) [hereinafter
Arledge Interview]. For his part, Dickson estimated the international workforce to be less than
2,000. Dickson Interview, supra note 17. In 2001, one journalist reported that 1,500 international
workers come to Disney each year. Richard Verrier, Disney Disappoints Some Foreign Workers,
ORLANDO SENTINEL, July 22, 2001, at H1. It is clear that Disney is increasing its reliance on
international workers.
27. Dickson Interview, supra note 17; see also Defendant Walt Disney World Co.‘s Motion
for Summary Final Judgment and Supporting Memorandum of Law at 5, Gupta v. Walt Disney
World Co., No. 6:05-cv-1432-Orl-22UAM, 2007 WL 2002454 (M.D. Fla. July 5, 2007) (No. 6:05-
cv-1432-Orl-ACC-JGG), 2006 WL 3911570, at *5 [hereinafter Disney MSJ].
28. See Get Started/Apply Now, DISNEY INT‘L PROGRAMS, https://www.disneyinternational
programs.com/apply.html#this (last visited Feb. 23, 2011).
29. Academic Exchange Experience: Role Descriptions, DISNEY INT‘L PROGRAMS,
https://www.disneyinternationalprograms.com/j1/experience_roledescriptions.html (last visited Feb.
23, 2011).
30. When You Wish upon a Star is a song from the Disney movie Pinocchio. CLIFF EDWARDS,
When You Wish upon a Star, on PINOCCHIO (Walt Disney Records 2001).
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A. “Something There that Wasn‟t There Before”:
31
Creating the
Q Visa
Before the Epcot theme park opened in 1982, Disney knew that it
wanted cast members in the Epcot World Showcase area of the park to be
from the countries represented in the showcase.
32
The showcase houses
pavilions representing eleven countries: Mexico, Norway, China,
Germany, Italy, the United States, Japan, Morocco, France, the United
Kingdom, and Canada.
33
The pavilions are situated in an arc around the
park‘s forty-acre lagoon,
34
where they are said to exist ―side by side in
exemplary amity.‖
35
The architecture of each pavilion either replicates a
genuine building or copies the ―vernacular style‖ of the country
represented.
36
Each pavilion is meant to exhibit a ―microcosm‖
37
of the
country represented and includes opportunities to experience ―native food,
entertainment, culture, and arts and crafts.‖
38
The pavilions are ―designed
to create the impression that the guest is in a foreign country and is
surrounded by people in that country.‖
39
Disney executives initially responded to the call for ―authentic
staffing‖
40
at the World Showcase by establishing the World Showcase
Fellowship Program.
41
However, this was a small program that would have
intermingled five to ten fellowship recipients among the hundreds of cast
members stationed at certain areas of the pavilions.
42
As a result, ―guests
would have [had] to be very, very lucky to see a Fellowship
Representative. Or they would have [had] to ask to meet one.‖
43
Dick Nunis, Disney‘s president of Outdoor Entertainment, refused to
accept the executives‘ plan.
44
He could not see how the Epcot World
Showcase could present the ―history and heritage‖ of the countries
represented without staffing the pavilions with cast members from those
31. ―Something there that wasn‘t there before‖ is a lyric from Something There, a song from
the Disney film Beauty and the Beast. ANGELA LANSBURY, Something There, on BEAUTY AND THE
BEAST (Walt Disney Records 1991).
32. Dickson Interview, supra note 17; see also Duncan Dickson, Who Are We Building This
For? 2 (2001) (unpublished M.A. case study, School of Hotel Administration, Cornell University)
(on file with author) [hereinafter Dickson Case Study].
33. HESS ET AL., supra note 14, at 97–98.
34. Id. at 97.
35. RICHARD R. BEARD, WALT DISNEY‘S EPCOT: CREATING THE NEW WORLD OF TOMORROW
134 (1982).
36. EYEWITNESS TRAVEL GUIDES: WALT DISNEY WORLD RESORT & ORLANDO 50 (Aruna
Ghose et al. eds., Dorling Kindersley Ltd. 2005) [hereinafter DK].
37. HESS ET AL., supra note 14, at 84.
38. Id. at 97. Goods sold at the pavilions must be actually produced in the country
represented. Dickson Case Study, supra note 32, at 3.
39. Disney MSJ, supra note 27, at 22.
40. Dickson Case Study, supra note 32, at 2.
41. Id. at 3; BEARD, supra note 35, at 135; see also Verrier, supra note 26.
42. Dickson Case Study, supra note 32, at 3.
43. Id.
44. Id. at 2.
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countries.
45
In response to Nunis‘ concerns, Duncan Dickson, Walt Disney
World‘s director of Casting,
46
worked with the United States Information
Agency to obtain a new J visa
47
designation for ―cultural ambassadors‖ to
come and serve as cast members in the Epcot World Showcase.
48
The
result was 100% staffing from the countries represented.
49
By the late 1980s, however, Congress started to take a closer look at J
visa programs and perceived abuses of those programs.
50
The General
Accounting Office (GAO) was tasked with examining whether J visa
programs were operating consistently with congressional intent.
51
The
GAO concluded that certain activities and programs were inconsistent with
congressional intent, and their list of malfeasances included instances of
participants employed as amusement park workers.
52
The GAO wrote:
―Authorizing J visas for participants and activities that are not clearly for
educational and cultural purposes as specified in the act dilutes the
integrity of the J visa and obscures the distinction between the J visa and
other visas granted for work purposes.‖
53
Some congressional representatives responded to the GAO report by
voicing the idea that J visas should be eliminated altogether. Others wanted
to see significant reforms in not only the J visa program, but also in
immigration law generally.
54
It was clear that Congress was going to
45. Id. at 3.
46. Rosen College of Hospitality Management: Biography of Dr. Duncan Dickson, UNIV. OF
CENT. FLA., http://www.hospitality.ucf.edu/faculty_ddickson.htm (last visited Feb. 24, 2011).
47. See 8 U.S.C. § 1101(a)(15)(J) (2006) (enumerating the requirements for obtaining a J
visa); infra Part IV.B (discussing the J visa in the context of Disney‘s International College
Program).
48. Dickson Interview, supra note 17.
49. Duncan Dickson, Teaching Notes: Who Are We Building This For? 4 (2001)
(unpublished M.A. case study, School of Hotel Administration, Cornell University) (on file with
author) [hereinafter Dickson Teaching Notes].
50. See Verrier, supra note 26 (discussing the Government Accountability Office‘s growing
suspicion of the J visa program in the 1980s); see also GAO Criticizes Exchange Visitor Programs,
67 INTERPRETER RELEASES 315 (1990) (discussing the GAO‘s 1990 report of J-1 exchange
programs). See generally U.S. GOV‘T ACCOUNTABILITY OFFICE, GAO/NSIAD-90-61, U.S.
INFORMATION AGENCY: INAPPROPRIATE USES OF EDUCATIONAL AND CULTURAL EXCHANGE VISAS
(1990) (criticizing the U.S. Information Agency for failing to adequately oversee the J visa
program). Dickson recalls the senator from Wyoming, Alan Simpson, particularly calling into
question Disney‘s J visa programs. Dickson Interview, supra note 17.
51. Foreign Operations, Export Financing, and Related Programs Appropriations Act, Pub. L.
No. 100-461, § 555, 102 Stat. 2268, 2268-37 (1988); see also U.S. GOV‘T ACCOUNTABILITY OFFICE,
supra note 50, at 2 (―Public Law 100-461 required GAO to examine the J-visa program
administered by the U.S. Information Agency . . . .‖).
52. U.S. GOV‘T ACCOUNTABILITY OFFICE, supra note 50, at 2–3.
53. Id. at 3.
54. In 1986, Congress enacted the Immigration Reform and Control Act, Pub. L. No. 99-603,
100 Stat. 3359 (1986) (codified as amended in scattered sections of 8 U.S.C.). The Immigration
Reform and Control Act (IRCA) was largely a response to the problem of illegal immigration. See,
e.g., Richard A. Johnson, Twenty Years of the IRCA: The Urgent Need for an Updated Legislative
Response to the Current Undocumented Immigrant Situation in the United States, 21 GEO. IMMIGR.
8
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engage in a full-scale reform of the country‘s immigration policy
55
and that
Disney‘s program could be affected.
56
Organizations that were reliant on J visa students banded together to
answer the calls for reform. However, Disney quickly realized that it was
altogether different from other entities that were J visa beneficiaries.
57
Most significantly, Disney wasn‘t a nonprofit organization.
58
For Disney, it was a defining moment. Should it continue to advocate
on behalf of J visas? Dickson, still the director of Casting and, at this point,
the de facto chief visa officer for the resort, decided the company should
strike out on its own.
59
And so it did.
Dickson recalls working with famed immigration attorney Ira
Kurzban
60
and Disney‘s local immigration counsel, Tom Raleigh of
Akerman Senterfitt,
61
to draft an entirely new visa.
62
Together they crafted
a carefully worded and very narrow piece of legislation—one that would
meet the needs of the Epcot World Showcase without creating a
generalized work visa.
63
The visa they drafted applied only to
L.J. 239, 244 (2007). After the passage of the IRCA, Congress turned to reform of legal
immigration. See, e.g., Peter H. Schuck, The Politics of Rapid Legal Change: Immigration Policy in
the 1980s, 6 STUD. IN AM. POL. DEV. 37, 64 (1992).
55. See, e.g., Peter H. Schuck & Theodore Hsien Wang, Continuity and Change: Patterns of
Immigration Litigation in the Courts, 1979–1990, 45 STAN. L. REV. 115, 116–17 (1992) (noting
that the legislation ultimately enacted, including the IRCA and the Immigration Act of 1990,
―renovated virtually the entire legal structure for handling immigration‖).
56. Pete Carey & Steve Johnson, Special Interests Shaped „90 Reform: Legislative Process
Became „Feeding Frenzy‟ for Lobbyists, SAN JOSE MERCURY NEWS (San Jose, Calif.), May 31,
1993, at 1A; see also HELEN A. SKLAR & STUART L. FOLINSKY, IMMIGRATION ACT OF 1990 TODAY
§ 8:106 n.1 (Cora D. Tekach ed., 2005); Adam Green, Section 208, New Classification for
International Cultural Exchange Programs, Q Nonimmigrants, in UNDERSTANDING THE
IMMIGRATION ACT OF 1990, at 190, 190 (Paul Wickham Schmidt ed., 1991).
57. Dickson Interview, supra note 17.
58. Id.
59. Id. Dickson‘s timing couldn‘t have been better. The legislation ultimately enacted turned
out to be the only legislation in the next twenty years where Congress achieved wide-scale
expansion rather than contraction of U.S. immigration laws. Cf. Natalie Liem, Mean What You Say,
Say What You Mean: Defining the Aggravated Felony Deportation Grounds to Target More than
Aggravated Felons, 59 FLA. L. REV. 1071, 1076–78 (2007) (describing modern federal legislation
restricting immigration).
60. Kurzban is the author of the key immigration law primer, Kurzban‟s Immigration Law
Sourcebook, and is a well-known immigration attorney. Attorney Profile for Ira J. Kurzban,
KURZBAN KURZBAN WEINGER TETZELI AND PRATT P.A., http://www.kkwtlaw.com/Bio/IraKurzban.
asp (last visited Feb. 24, 2011). Kurban himself has no recollection of seeing the language of the
proposed legislation prior to its enactment. Telephone Interview with Ira Kurzban, Attorney,
Kurzban Kurzban Weinger Tetzeli and Pratt P.A. (Sept. 21, 2010) [hereinafter Kurzban Interview].
61. Attorney Profile for Thomas L. Raleigh III, AKERMAN SENTERFITT,
http://www.akerman.com/bios/bio.asp?id=404&name=Raleigh (last visited Feb. 7, 2011).
62. Dickson Interview, supra note 17.
63. Id.; see also Verrier, supra note 26; The Immigration Act of 1990 Analyzed: Part 6–The
Remaining Nonimmigrant Visa Provisions, 68 INTERPRETER RELEASES 69, 76 (1991) (noting that
the legislation ultimately passed would be limited to Disney as well as other ―organizations that
strive to present authentic cultural programs, such as Russian circuses or Chinese acrobats‖).
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―international cultural exchange program[s]‖ in which the international
worker would, as part of his employment, share ―the history, culture, and
traditions of the country of the alien‘s nationality.‖
64
The legislation was
intentionally narrow so as to meet Disney‘s needs without qualifying a
―wide range of other activities . . . as cultural exchanges.‖
65
Having drafted this provision, Dickson began the process of securing
congressional and senatorial buy-in. He started with the Florida
congressman whose district included Disney World, Bill McCollum,
66
as
well as the congressman whose district included Disney‘s corporate
headquarters in Burbank, California, Howard Berman.
67
Dickson also
worked directly with the office of Bruce Morrison, a Connecticut
congressman who was then the chair of the House immigration
subcommittee of the House Judiciary Committee.
68
Garnering Morrison‘s support was not difficult. The congressman
approached this period of immigration reform from the ―basic principle
that the more people who will get something from a piece of legislation,
the broader the support will be.‖
69
He sought to ―institutionalize‖ what
constituents liked about immigration, hoping to ―logroll his way to a
majority with an omnibus bill built around a coalition of intense, pro-
immigration special interests.‖
70
Detractors described this period of legislative reform as ―a circus‖ or a
―feeding frenzy at the trough,‖ with special interests claiming nearly every
section of the developing legislation.
71
Morrison‘s response? ―For those
academics who never passed any legislation, let them do better. . . . This is
legislation that people told me never would pass. . . . We did it by
understanding the politics of immigration better.‖
72
While the immigration legislation was moving forward at a quick pace,
Morrison was gearing up for a gubernatorial bid.
73
He began directing the
details of the immigration bill over a car phone from the campaign trail in
Connecticut.
74
Dickson, for his part, was turned over to Morrison‘s aide.
75
64. 8 U.S.C. § 1101(a)(15)(Q)(i) (2006).
65. Carey & Johnson, supra note 56.
66. Bill McCollum previously served as Florida‘s Attorney General and made an unsuccessful
bid for the state‘s governorship in 2010. Interestingly, he recently proposed legislation that would
go ―one step further‖ than the law enforcement measures against illegal immigrants proposed in
Arizona in the now infamous Senate Bill 1070. See Barbara Liston, Florida AG Proposes Tougher
State Immigration Law, REUTERS NEWS, Aug. 11, 2010 (internal quotation marks omitted).
McCollum declined to speak with me about the history of the Q visa.
67. Dickson Interview, supra note 17; see also Carey & Johnson, supra note 56.
Congressman Berman, too, declined to speak with me about the history of the Q visa.
68. See Carey & Johnson, supra note 56.
69. Id.
70. Schuck, supra note 54, at 69.
71. Carey & Johnson, supra note 56.
72. Id. (internal quotation marks omitted).
73. Id.
74. Id.
75. Dickson Interview, supra note 17.
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Dickson quickly learned that the congressional aides would be the secret to
getting his new visa enacted as part of the larger immigration bill.
76
He
began working with all of the aides to congressmen on the immigration
subcommittee to develop his visa plan.
77
Dickson did not limit his efforts to the House; he also spoke to
senators.
78
He achieved agreement from senators that if the visa proposal
made it into the House bill, the Senate would not fight it.
79
This was no
small achievement, given the ―delicate‖ nature of the Senate–House
negotiations regarding the bill.
80
Indeed, the tense Senate–House
negotiations resulted in the immigration bill being passed with ―only hours
left‖ in the 1990 legislative session, after which it was promptly signed
into law by President George H.W. Bush.
81
It was November 29, 1990, when the Immigration Act of 1990, the
―most significant reform of the legal immigration system of the United
States in nearly 40 years,‖
82
became law.
83
Dickson‘s proposal was
codified in the Act as the Q visa and was quickly dubbed the ―Disney visa‖
by Ira Kurzban.
84
B. The Bare Necessities:
85
Legal Requirements for Q Visas
The Q visa is designed for participants in ―an international cultural
exchange program approved . . . for the purpose of providing practical
training, employment, and the sharing of the history, culture, and traditions
of the country of the alien‘s nationality and who will be employed under
the same wages and working conditions as domestic workers.‖
86
Such visas are only available to nonimmigrants, meaning those coming
to the United States temporarily, as opposed to indefinitely. In contrast to
the J visa,
87
however, it is a work-based visa, not a study-based visa. This
difference is emphasized by the federal regulations governing Q visas,
which specify the types of employers qualified to hire Q visa beneficiaries,
76. Id.
77. Id.
78. Id.
79. Id.
80. Schuck, supra note 54, at 76; see also id. at 76–80 (detailing the extensive negotiations
between, and compromises made by, the House and Senate regarding the bill).
81. Carey & Johnson, supra note 56. Interestingly, the White House, the Attorney General,
and the Immigration and Naturalization Service did not play a significant role in shaping this
legislative process. Schuck, supra note 54, at 76.
82. Paul Wickham Schmidt, Overview of the Immigration Act of 1990, in UNDERSTANDING
THE IMMIGRATION ACT OF 1990, at 1, 1 (Paul Wickham Schmidt ed., 1991).
83. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (codified as amended at 8
U.S.C. § 1101 (2006)).
84. Carey & Johnson, supra note 56; Dickson Interview, supra note 17; Kurzban Interview,
supra note 60.
85. The Bare Necessities is a song from the Disney movie The Jungle Book. BRUCE
REITHERMAN, The Bare Necessities, on THE JUNGLE BOOK (Walt Disney Records 1967).
86. 8 U.S.C. § 1101(a)(15)(Q) (2006) (emphasis added).
87. See infra part IV.B.
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applicable programs, applicant qualifications, and the duration of
employment.
88
Only qualified employers ―doing business‖ may file applications on
behalf of Q visa beneficiaries.
89
―Doing business means the regular,
systematic, and continuous provision of goods and/or services (including
lectures, seminars and other types of cultural programs).‖
90
Such employers must show that their cultural exchange program has a
cultural component that ―is an essential and integral part of the
international cultural exchange visitor‘s employment or training.‖
91
Moreover, the program must ―be designed, on the whole, to exhibit or
explain the attitude, customs, history, heritage, philosophy, or traditions of
the international cultural exchange visitor‘s country of nationality.‖
92
The program must also be accessible to the American public, taking
―place in a school, museum, business or other establishment where the
American public, or a segment of the public sharing a common cultural
interest, is exposed to aspects of a foreign culture as part of a structured
program.‖
93
And the employment or training of Q visa recipients cannot
―be independent of the cultural component of the international cultural
exchange program. The work component must serve as the vehicle to
achieve the objectives of the cultural component.‖
94
It is also incumbent upon employers to certify that cultural exchange
visitors will be ―offered wages and working conditions comparable to
those accorded to local domestic workers similarly employed.‖
95
Employers do not, however, have to prove that qualified domestic workers
are unattainable, which is a requirement for other nonimmigrant work
visas.
96
As for Q visa recipients, an ―essential element‖ of their ―employment
or training‖ must be ―sharing with the American public, or a segment of
the public sharing a common cultural interest, of the culture of the alien‘s
country of nationality.‖
97
Accordingly, the beneficiary must have the
―ability to communicate effectively about the cultural attributes of his or
her country of nationality to the American public.‖
98
Q visa recipients are limited to a fifteen-month stay in the United
States.
99
However, they can be admitted to the United States on a Q visa
88. See generally 8 C.F.R. § 214.2(q) (2010).
89. Id. § 214.2(q)(4)(C).
90. Id. § 214.2(q)(1)(iii) (emphasis omitted).
91. Id. § 214.2(q)(3)(iii)(B).
92. Id.
93. Id. § 214.2(q)(3)(iii)(A).
94. Id. § 214.2(q)(3)(iii)(C).
95. Id. § 214.2(q)(4)(ii)(B).
96. An employer seeking to hire an ―H-1B‖ nonimmigrant worker, for example, must submit
a labor certification application with the U.S. Department of Labor stating, among other things, that
it has taken ―good faith steps to recruit‖ U.S. workers. See 8 U.S.C. § 1182(n)(1)(G)(i) (2006).
97. 8 C.F.R. § 214.2(q)(3)(i).
98. Id. § 214.2(q)(3)(iv)(C).
99. Id. § 214.2(q)(2)(i).
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more than once so long as they reside and are physically present outside of
the United States for a minimum of one year before each return to the
United States.
100
Finally, it is important to note that there is no numerical limit or quota
on the number of Q visas that can be granted yearly. This stands in contrast
to the statutorily imposed limits in place for other categories of
nonimmigrant employment visas.
101
C. Part of Your World:
102
Disney‟s Cultural Representative Program
The official title of Walt Disney World‘s Q visa-based program is the
Disney Cultural Representative Program.
103
It is marketed as a means for
participants to ―share their culture and customs with . . . [g]uests who visit
from all over the world.‖
104
Disney requires that the participants have
firsthand experience of life in the country they seek to represent.
105
Participants must also be able to speak the language of the country
represented, as well as have a sufficient command of English in order to be
able ―to communicate and explain their customs, traditions and culture to
the public.‖
106
Since its inception in 1990, the program has been ―working very
well.‖
107
Dickson calls it ―one of the best exchange programs in the
world.‖
108
Consistent with the program‘s history, many members of the Disney
Cultural Representative Program are stationed at their home countries‘
themed pavilions in the Epcot World Showcase.
109
Notably, the Walt
100. Id. § 214.2(q)(2)(ii). Indeed, some Disney cast members who participated in the one-time-
only Disney International College Program, see infra Part IV.B, have rejoined Disney through the
Cultural Representative Program. See, e.g., Louisa Gibbs, Louisa‟s Home Page, THE WONDERFUL
WORLD OF DISNEY, http://www.freewebs.com/disneygibbs/ (last visited Feb. 27, 2011); The Story of
the S, THE MANY ADVENTURES OF SHAYNA AND SHANAN, http://shashafabulous.wordpress.com/the-
story-of-the-s/ (last visited Feb. 27, 2011); When You Wish Upon a Star Your Dreams Come True,
THE MANY ADVENTURES OF SHAYNA AND SHANAN (Jan. 5, 2010), http://shashafabulous.wordpre
ss.com/2010/01/05/when-you-wish-upon-a-star-your-dreams-come-true/ (telling the story of
Canadian roommates in Disney‘s International College Program who will return to Orlando as
cultural representatives).
101. For example, there are 65,000 H-1B visas available annually. 8 U.S.C. § 1184(g)(1)(B)
(2006).
102. Part of Your World is a song from the Disney movie The Little Mermaid. JODI BENSON,
Part of Your World, on THE LITTLE MERMAID (Walt Disney 1989).
103. See Cultural Representative Program: Program Overview, DISNEY INT‘L PROGRAMS,
https://www.disneyinternationalprograms.com/crp.html (last visited Feb. 27, 2011).
104. Id. Cultural representatives also visit and share their cultures with elementary school
students in the Orlando area. See Kristine Millen, Ambassadors Bring the World to Schoolchildren,
ST. PETERSBURG TIMES (St. Petersburg, Fla.), Oct. 15, 1998, North Pinellas Times Section, at 10.
105. Disney MSJ, supra note 27, at 1 n.1.
106. Id.
107. Carey & Johnson, supra note 56.
108. Verrier, supra note 26.
109. Cultural Representative Program: Program Overview, supra note 103; see also DK,
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Disney World Company operates only five of the eleven Epcot pavilions—
Norway, United Kingdom, Canada, Germany, and the United States.
110
However, the third-party operators who run the other pavilions—Mexico,
China, Japan, France, Italy, and Morocco—are contractually required to
follow Disney‘s staffing ―authenticity‖ requirements.
111
The work of the Epcot cultural representatives is varied.
112
For
example, consider a cultural representative who is stationed in the outdoor
vending area of the Chinese pavilion that abuts the central lagoon. He sells
authentic Chinese toys, including intricate marionettes and diabolos, which
are traditional Chinese performance and folk toys.
113
But his role is not
limited to mere sales. He makes the marionettes come alive and has them
dance for tourists passing by. When a young boy tries to work one of the
diabolos, the cultural representative gamely steps behind him, takes his
hands, and guides him along. In this way, the cultural representative‘s
position in merchandizing is one of selling goods while exhibiting,
explaining, and sharing traditional culture and customs. His employment
is, in short, living up to the statutory and regulatory language surrounding
Q visas.
Another example is the cultural representative who greets guests
looking for a thrill on the Maelstrom ride in the Norway pavilion at Epcot
Center. The cultural representative wears traditional Norwegian dress, and
she asks guests if they have ever been to Norway. Then, whether or not the
guests have visited Norway, she regales them with stories about her
hometown of Trondheim while they wait to board a simulated Viking boat
that will take them past several animatronic trolls, a not-too-threatening
polar bear, and a large-scale model of an offshore drilling rig. Her job
supra note 36, at 50; HESS ET AL., supra note 14, at 97.
110. Disney MSJ, supra note 27, at 3 n.4.
111. Id.
112. One role that cultural representatives do not hold is in the area of entertainment.
Entertainment at the pavilions is structured to be authentic to the countries represented, but it is not
staffed by cultural representatives. Id. at 5 n.6.
113. Diabolos, SERIOUS JUGGLING, http://www.seriousjuggling.com/diabolos-chinese-yo-
yo.htm (last updated Jan. 4, 2011).
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clearly involves sharing culture and customs.
114
The Cultural Representative Program, however, is not limited to the
Epcot Theme Park. Another focus of the program is Disney‘s Animal
Kingdom and the adjacent Animal Kingdom Lodge.
115
Animal Kingdom is the newest theme park at Walt Disney World.
Established more than a decade ago, its vast acreage makes it the largest of
any Disney theme park on the globe.
116
The park includes an area called
Africa and one called Asia, where guests can dine on authentic cuisine,
purchase country-inspired souvenirs, view dance and drumming
demonstrations, and see indigenous animals living in ―careful re-creations
of natural landscapes in exotic lands ranging from Thailand and India to
southern Africa.‖
117
Disney has worked to hire Africans and Asians as
cultural representatives in order to add authenticity to these areas of the
park.
118
Just as they do at Epcot, cultural representatives inside Disney‘s
Animal Kingdom perform a variety of roles. Consider just one of the
cultural representatives who is stationed at the open-air market in the
Africa section of the park.
119
She stands behind a table that is covered with
traditional African instruments. A young guest approaches and picks up a
handmade shekere. The representative explains that the shekere is made of
calabash gourds and shells, popular throughout Africa, and can produce
either a subdued or very loud shaker sound. She and the guest then shake
the instrument to explore the many sounds it can make.
Near the Animal Kingdom is the Animal Kingdom Lodge, which
opened in 2001.
120
The six-story, 1,293-room safari lodge is designed in
the style of a South African krall or village.
121
Balconies around the
building overlook savannas housing hundreds of animals.
Roles for cultural representatives stationed at the Animal Kingdom
Lodge vary. Some are ―greeters‖ in the hotel lobby.
122
Some work at Jiko,
one of the hotel‘s three restaurants,
serving up authentic African cuisine.
123
114. See Charles Hillinger, Epcot‟s International Pavilions Operate as True Global Village,
L.A. TIMES, Mar. 25, 1990, at E4 (telling the story of an exchange in the Morocco pavilion where a
cast member engaged guests with an explanation of where Morocco is and how it enjoys the longest
unbroken treaty of any country in the world with the United States).
115. Cultural Representative Program: Program Overview, supra note 103; see also Verrier,
supra note 26.
116. HESS ET AL., supra note 14, at 142.
117. Id.
118. Verrier, supra note 26.
119. The following information is the result of an interview with a cast member. Interview with
―Amari,‖ Cast Member, Walt Disney World, in Orlando, Fla. (May 25, 2009).
120. Richard Verrier, Disney Goes Wild With Hotel, ORLANDO SENTINEL, Mar. 5, 2001, at
CFB20.
121. Id.
122. See Cultural Representative Program: Sub-Saharan Africa Role Descriptions, DISNEY
INT‘L PROGRAMS, https://www.disneyinternationalprograms.com/crp/roles_africa.html (last visited
Feb. 27, 2011).
123. See id.; Jane Wooldridge, Disney Lodge Recreates Africa, Wildlife and All, MIAMI
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Others serve as guides for one of the lodge‘s savannas, answering guests‘
questions about both the animals found there and their home countries.
124
These examples demonstrate the clear success of the Q visa for Disney.
It has paved the way for Disney to transport guests from Florida to
countries around the world by introducing them to ―the cultures, customs,
crafts, and foods of other lands.‖
125
Beyond those roles associated with this magical guest transportation,
cultural representatives also have roles in guest relations. That is, they are
stationed in guest relations areas at each of the theme parks and in
Downtown Disney.
126
There, they communicate with the resort‘s diverse
visitors in their native languages,
127
―answering Guest questions, providing
information and directions, handling Guest situations, cash handling,
problem solving and proactively seeking out Guest contact.‖
128
D. If I Didn‟t Have You:
129
How Cultural Representatives Benefit
Disney
Cultural representatives are uniquely affordable. While they are
covered by the resort‘s collective bargaining agreement,
130
their salaries
remain low when compared to union workers because of their short length
of stay. Their pay starts at slightly above the minimum wage.
131
There are also tax benefits in hiring international cultural
HERALD, June 3, 2001, at 1J (―Lesh, a young man from Botswana who works at the Boma family
restaurant, stopped at breakfast to answer questions about Africa‘s geography.‖).
124. See, e.g., Animal Kingdom Lodge Fact Sheet, ALL EARS.NET, http://allears.net/acc/faq_
akl.htm (last visited Feb. 27, 2011) (answering the question, ―What are the savannas like?‖);
Cultural Representative Program: Sub-Saharan Africa Role Descriptions, supra note 122.
125. BEARD, supra note 35, at 134–35.
126. Cultural Representative Program: Program Overview, supra note 103.
127. Verrier, supra note 26 (quoting the director of hiring for Walt Disney World as stating,
―‗Many of our guests who come here don‘t speak English, so to have someone who can speak their
language and their culture—we get guest compliments on that . . . .‘‖).
128. See Guest Relations Jobs at Disney Theme Parks & Resorts , DISNEY, http://casting.disney
parks.jobs/careers/guest-relations-jobs (last visited Feb. 27, 2011).
129. If I Didn‟t Have You is a song from the Disney/Pixar film Monsters, Inc. BILLY CRYSTAL,
If I Didn‟t Have You, on MONSTER‘S INC. (Walt Disney Records 2001).
130. Interview with Julee Jerkovich, Sec‘y-Treasurer, UFCW Local 1625, in Orlando, Fla.
(Mar. 19, 2010) [hereinafter Jerkovich Interview]. Notably, cultural representatives are able to use
the union grievance system to challenge adverse employment decisions, but they may be returned to
their home country before that process is completed. See Scott Powers, Disney Sends Ex-Worker
Home, ORLANDO SENTINEL, Sept. 5, 2008, at C1 (relating the story of Odirile Rammoni, a cultural
representative from South Africa, who was dismissed following charges of improperly touching a
co-worker and who was returned to Africa before his arbitration hearing); Jerkovich Interview,
supra (discussing the need to pursue expedited grievances for Q visa beneficiaries).
131. For example, a custodial host or hostess might be paid $7.60 per hour, see Walt Disney
World Career Opportunities, DISNEY, http://disney.go.com/DisneyCareers/wdwcareers/hourly/
custodial.html (last visited Feb. 27, 2011), while the Florida minimum wage is $7.25 per hour, see
Florida‟s Minimum Wage, AGENCY FOR WORKFORCE INNOVATION, http://www.floridajobs.org/min
imumwage/index.htm (last updated Oct. 2010).
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representatives.
132
Such workers are exempt from FICA taxes,
133
which
would otherwise cost Disney 7.65% of the workers‘ total earnings.
134
Taking a look at figures from 1982, the then-average Disney employee
had three years of seniority.
135
This put the average employee at step four
of the union wage-progression, resulting in that worker earning fifty-seven
cents per hour more than a cultural exchange representative.
136
Assuming
an average thirty-two hour work week
137
and an international workforce of
2,000,
138
this would yield weekly wage savings of $36,480 and yearly wage
savings of $1,896,960. In 2011 dollars, that‘s a savings of $4,344,038 per
year.
139
A more updated view of wage disparities suggests a much higher
number. Based on wage disparities reported by a journalist in 2005,
140
and
using the same assumptions as above,
Disney‘s savings from using Q visa
workers would be $343,520 per week and $17,863,040 per year in 2011
dollars.
Disney also manages to hold onto a good chunk of the cultural
representatives‘ salaries. Disney owns and operates the apartment
complexes where it houses international workers. Cultural representatives
are charged between $82 and $108 per week for housing, with the rent
being deducted directly from their Disney paycheck.
141
In addition, cast
members spend money at the parks when they are not working.
142
132. Dickson Teaching Notes, supra note 49, at 3.
133. Mike Cooper & Stan Torgersen, New Regs on Certain Filing Requirements of Foreign
Individuals, 29 THE TAX ADVISER 150, 150 (1998).
134. See, e.g., INTERNAL REVENUE SERV., DEP‘T OF THE TREASURY, PUBL‘N 15 (CIRCULAR E),
EMPLOYER‘S TAX GUIDE 1 (2010), available at http://www.irs.ustreas.gov/pub/irs-pdf/p15.pdf
(adding the Medicare tax rate with the employer tax rate for social security).
135. Dickson Teaching Notes, supra note 49, at 3.
136. Id.
137. Id.
138. Dickson Interview, supra note 17.
139. Adjustments to 2011 dollars were calculated with reference to the U.S. Consumer Price
Index. See What Is a Dollar Worth?, FED. RESERVE BANK OF MINNEAPOLIS, http://www.minneapo
lisfed.org/community_education/teacher/calc/ (last visited Feb. 27, 2011) (click ―CPI calculator‖
link).
140. One journalist clocked the hourly wage disparity between a college worker, who would be
in the same seniority position as a cultural representative, and a ―veteran‖ to be $4.75 an hour,
which would result in a weekly wage savings of $304,000 and yearly wage savings of $15,808,000.
See Mike Schneider, Disney World Internships Draw College Students and Criticism, MIAMI
HERALD, July 25, 2005, at G4.
141. Cultural Representative Program: Living, DISNEY INT‘L PROGRAMS, https://www.disney
internationalprograms.com/crp/living_intro.html (last visited Feb. 27, 2011); see also Verrier, supra
note 26.
142. See, e.g., Jim Hill, Cast Member Corner: Further Thoughts on WDW‟s College Program,
JIM HILL MEDIA (Mar. 31, 2004, 4:00 PM), http://jimhillmedia.com/blogs/cast_member_corner/
archive/2004/04/01/1184.aspx (discussing the Disney College Program). The resort has an entire
store devoted to selling Disney memorabilia to cast members. Anne Smith, Remarks at the
University of North Dakota recruiting session for the Disney College Program (Mar. 31, 2010)
(notes on file with author).
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Disney also obtains cost savings through the uniquely dependable
nature of international labor. While general hires may simply walk away
from their positions at Disney,
143
international workers tend to stay.
144
For
one, they approach the position understanding that it is a short-term
experience.
145
The fact that the cultural representatives also pay for their
own visa costs, as well as any in-country travel to obtain that visa,
146
assures Disney that the workers are serious about the program.
147
In
addition, their ability to remain in the United States is tied to the terms of
their visa, which requires them to participate in the Disney Cultural
Representative Program.
148
To put it bluntly, if they leave the job, they
must leave the country.
The authorized length of stay for cultural representatives is also
financially important. Cultural representatives can work up to fifteen
months in the United States,
149
which is significantly longer than some of
the four-month
150
or even twelve-month
151
international college programs
at Disney. In addition, Q visa recipients can return to the United States
with Q visas multiple times, so long as they live outside the United States
for at least one year between trips.
152
The longer stay and permission to
return limits Disney‘s turnover and training costs.
This is not to suggest that there are no costs to international staffing.
Disney incurs advertising costs, travel and business expenses, and
recruiters‘ expenses, to name a few.
153
But those costs do not exceed or
even match the savings resulting from lowered wages and tax exclusion.
154
And those costs may now be significantly reduced since Disney does all
143. See, e.g., DisneyCP2000, Disappointed by Disney, WDWMAGIC.COM (Nov. 27, 2002,
2:40 PM), http://forums.wdwmagic.com/showthread.php?t=17028 (―[O]ne [of] my roommate‘s
[sic] left the program after 2 months . . . .‖). According to Julee Jerkovich at United Food &
Commercial Workers Union, Local 1625, attrition, while normally a concern for Disney, has
dropped off significantly with the present economic downturn. Jerkovich Interview, supra note 130.
144. Dickson Teaching Notes, supra note 47, at 3.
145. Id.
146. See Cultural Representative Program: FAQs, DISNEY, https://www.disneyinternational
programs.com/crp/faq_intro.html (last visited Feb. 27, 2011) (―This visa authorizes employment for
your specific company ONLY.‖).
147. See Kelly Barbieri, Textbook Lesson on Exchange Students: Bringing Foreigners to Work
at U.S. Attractions Is Not as Easy as It Used to Be, AMUSEMENT BUS., Apr. 2005, at 27, 32.
148. See 8 C.F.R. § 274a.12(b)(15) (2010). Cultural representatives have another reason to
stick out their contracts: If they fulfill their contract with Disney, the company will pay for half of
their round-trip travel to their home country. Interview with ―Jamie,‖ Cast Member, Walt Disney
World, in Orlando, Fla. (May 27, 2009) [hereinafter Jamie Interview]; see also Hillinger, supra
note 114 (noting that international students at Epcot, the precursors to cultural representatives, who
left the program early forfeited a paid flight back).
149. See 8 C.F.R. § 214.2(q)(2)(i) (2010).
150. See infra note 295 and accompanying text.
151. See infra note 318 and accompanying text.
152. See 8 C.F.R. § 214.2(q)(2)(ii); see also Jamie Interview, supra note 148 (stating that he
was on his second Q visa stay in the United States with Disney).
153. See Dickson Teaching Notes, supra note 49, at 3.
154. Id.
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international recruiting in-house.
155
They have also now moved, in part,
towards an Internet-based application
156
and interview process.
157
Disney may benefit financially from its cultural representatives, but one
former cast member has challenged Disney‘s insistence on staffing certain
areas of the resort exclusively with cultural representatives, claiming that
doing so amounts to employment discrimination.
158
In a lawsuit filed in
2005, Anesh Gupta, an Asian-American, argued that wait-staff positions at
the Akershus Royal Banquet Hall in Epcot‘s Norway pavilion should not
be limited to cultural representatives.
159
Gupta‘s lawsuit centered on the Akershus Royal Banquet Hall, which is
by far the most popular restaurant in Epcot. In fact, it books reservations up
to 180 days in advance.
160
The restaurant‘s popularity derives neither from
the staff‘s traditional Norwegian garb nor the Norwegian cuisine on the
menu. Rather, Akershus is the only restaurant in Epcot to offer a service
that legions of little girls clamor for—the opportunity to dine with Disney
princesses such as Sleeping Beauty,
161
Belle, and Snow White.
162
Compared to other cast members, the cultural representatives who
serve as wait-staff for Akershus earn an extraordinary amount of money.
163
In a single day, thanks to the tips, an Akershus server takes home the
equivalent of two weeks‘ wages for an entry-level cast member in the
Norwegian pavilion‘s merchandise store.
164
Initially, Disney did not insist that all of the Akershus‘ wait-staff
complement the Norwegian cultural theme. The company allowed ―non-
authentic‖ cast members to work the breakfast shift, before the World
Showcase opened, when an American breakfast was served.
165
In April of
2005, that changed.
166
Disney eliminated the American-style breakfast and
155. See Barbieri, supra note 147 (noting comments of Kim Warsicki, manager of
international recruitment at Walt Disney Entertainment).
156. See Get Started/Apply Now, supra note 28.
157. Disney employs Web-based interviews in connection with the parallel Disney College
Program. See How to Apply, DISNEY COLLEGE PROGRAM, https://www.wdwcollegeprogram.com/
sap/its/mimes/zh_wdwcp/apply/apply.html (last visited Feb. 27, 2011) (describing the Web-based
interview process for the Disney College Program).
158. See Gupta v. Walt Disney World Co., 256 F. App‘x 279, 280 (11th Cir. 2007).
159. Id.
160. BIRNBAUM GUIDES, WALT DISNEY WORLD: EXPERT ADVICE FROM THE INSIDE SOURCE 259
(Stephen Birnbaum et al. eds., Disney Book Group 2009) [hereinafter BIRNBAUM 2009]; HESS ET
AL., supra note 14, at 106 (noting that reservations are booked ninety days in advance for those not
staying at hotels on the resort property); Princess Storybook Dining at Akershus Royal Banquet
Hall, DISNEY, http://disneyworld.disney.go.com/dining/akershus/ (last visited Feb. 27, 2011).
161. Sleeping Beauty is known formally as ―Aurora,‖ a moniker less familiar to the general
public than to the throngs of costume-clad look-alike children who descend upon the Walt Disney
properties every day. See Sleeping Beauty: Princess Aurora, DISNEY, http://disney.go.com/charac
ters/?channel=154189#/characters/classics/sleepingbeauty/ (last visited Feb. 27, 2011).
162. See HESS ET AL., supra note 14, at 106.
163. Jamie Interview, supra note 148.
164. Id.
165. Gupta v. Walt Disney World Co., 256 F. App‘x 279, 281 (11th Cir. 2007).
166. Id.
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shifted to an all-day Norwegian dining experience, and thus one staffed by
international workers.
167
Disney justified the staffing change with a clever
plotline: The wife of a Viking king now ―invites storybook heroines to a
feast at the royal castle in Norway.‖
168
From that moment on, Disney has
insisted that all wait-staff be ―culturally authentic to Norway.‖
169
Gupta argued that the shift in staffing policy amounted to employment
discrimination.
170
The courts disagreed. Disney won summary judgment
from the United States District Court in Orlando,
171
and that decision was
upheld by the Eleventh Circuit.
172
The Eleventh Circuit‘s decision was based in large part on Disney‘s
description of cultural authenticity. The company insisted that authenticity
was not dependent upon Norwegian heritage,
173
but rather the individual‘s
ability to authentically share the Norwegian culture.
174
Gupta was unable to
authentically share the Norwegian culture with guests because he had only
visited the country for one or two days and had no firsthand knowledge of
Norwegian culture.
175
The court agreed with Disney that Gupta was
therefore unqualified to be a server at Akershus and so had neither direct
nor circumstantial evidence of employment discrimination.
176
The Gupta lawsuit is significant for many reasons. For one, it
highlights Disney‘s artful lawyering.
177
Had Disney insisted that Akershus
servers be of Norwegian ancestry,
178
the company would have lost the
suit.
179
Instead, Disney established that cultural authenticity—however
gained—was an important job qualification.
180
The case is also significant because Gupta pursued his suit without
legal representation
181
and without union support. If the earnings of
Akershus wait-staff were a concern to American workers, one imagines
167. Id.
168. Disney MSJ, supra note 27, at 5.
169. Gupta, 256 F. App‘x at 281.
170. Id. at 281–82.
171. See Gupta v. Walt Disney World Co., No. 6:05-cv-1432-Orl-22UAM, 2007 WL 2002454,
at *1 (M.D. Fla. July 5, 2007) (reviewing motion for review of costs following entry of summary
judgment).
172. Gupta, 256 F. App‘x at 280.
173. That is to say, Disney‘s policy did not turn on national origin, race, or color. Id. at 282.
174. Id. At the time, Disney employed a cultural representative in the Norway pavilion who
was of Asian ancestry but who grew up in Norway, spoke Norwegian, and had ―personal knowledge
of the traditions and culture of Norway.‖ Disney MSJ, supra note 27, at 3.
175. Gupta, 256 F. App‘x at 282.
176. Id.
177. See David Tobenkin, Not Norwegian Enough: Is It Ever OK to Discriminate?, HR MAG.,
Aug. 2008, at 91, http://findarticles.com/p/articles/mi_m3495/is_8_53/ai_n29460346/?tag=con
tent;col1.
178. Disney admitted that ―cultural authenticity was described in shorthand‖ by ―individual
employees‖ as ―‗being from‘ Norway or being ‗first or second generation.‘‖ Disney MSJ, supra
note 27, at 9 n.10, 18 n.19.
179. Tobenkin, supra note 177.
180. Id.
181. Gupta, 256 F. App‘x at 280.
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that the unions who represent Disney workers would have jumped at the
chance to litigate the practice of staffing the restaurant with cultural
representatives. They did not. One explanation for this is that cultural
representatives are not staffed at other character dining experiences around
the resort—such as Play ‗n Dine
182
in Disney‘s Hollywood Studios or
Cinderella‘s Royal Table, Crystal Palace, and Liberty Tree Tavern in the
Magic Kingdom—giving American workers the opportunity to earn the
coveted princess-induced tips at those establishments. Another explanation
is that wait-staff at character restaurants, despite their tips, are not the
highest paid cast members at the resort. That honor goes to banquet
workers
183
—and those roles are reserved exclusively for American
workers.
184
E. Mine, Mine, Mine:
185
The Q Visa Success
It is hard to view Dickson‘s lobbying efforts as anything other than a
full-scale success for Disney. Twenty years after its creation, Disney
remains the dominant beneficiary of the Q visa. Participants in Disney‘s
2007 Cultural Representative Program held about 54% of the 2,412 Q
visas that the United States granted during that year.
186
After all, the ―controlling considerations‖ for such programs are ―the
public accessibility and the cultural exchange value of the program.‖
187
Disney‘s cultural representatives are ―available‖ to the public—at least the
public who can afford Disney‘s rather steep admission prices. And they are
viewed as employees of ―a national exhibit at an international cultural
forum‖—one that is visited by park guests specifically looking to
experience the history, culture, and traditions of the workers‘ home
countries.
188
As such, the government believes it is irrelevant that their
182. The Play ‗n Dine restaurant, rather than offering costumed princesses, draws its characters
from the preschool-targeted television shows under the Playhouse Disney brand. The characters
include June and Leo from Disney‘s Little Einsteins and Handy Mandy. See BIRNBAUM 2009, supra
note 160, at 236, 252; Hollywood & Vine: Hollywood Studios Dining & Restaurants, DISNEY,
http://disneyworld.disney.go.com/dining/hollywood-and-vine/ (last visited Feb. 27, 2011).
183. Jerkovich Interview, supra note 130.
184. Id.
185. Mine, Mine, Mine is a song from the Disney movie Pocahontas. MEL GIBSON, Mine,
Mine, Mine, on POCAHONTAS (Walt Disney Records 1995).
186. Compare Dewayne Bevil, 25 Years of Epcot Fun, ORLANDO SENTINEL, Sept. 30, 2007, at
F10 (estimating Epcot‘s Q visa recipients to be 1,300 strong), with OFFICE OF IMMIGRATION
STATISTICS, U.S. DEP‘T OF HOMELAND SEC., 2008 YEARBOOK OF IMMIGRATION STATISTICS 63–66
tbl.25 (2009), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/ois_yb_
2008.pdf (reporting the issuance of 2,412 Q visas in 2007). The lowest number of Q visas granted
since 1999 was 1,755 (in 2002) and the highest was 3,231 (in 2008). Id. The average admission rate
between 1999 and 2008 was 2,359. Id. This stands in contrast to the nearly 900,000 total temporary
workers or 350,000 J-1 visa recipients admitted annually from 1999 to 2008. Id.
187. Letter from Evelyn M. Upchurch, Dir. of the Tex. Serv. Ctr. of the U.S. Citizenship and
Immigration Servs., to Joseph H. Rosen 3 (Nov. 29, 2005) (on file with author) [hereinafter Rosen
Letter].
188. Id.
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―associated employment may be in a relatively minor retail function such
as food service or the vending of souvenirs.‖
189
It is remarkable to contrast Disney‘s Q visa success with the following
story of Q visa failure. A temporary staffing company specializing in
placing hotel employees tried to justify its ongoing hiring of Q visa-based
workers for placement at hotels throughout the United States by noting that
the workers were told to: (1) wear clothing reflective of their nationality
and country of origin; (2) engage in discussions with guests regarding their
culture; and (3) host cultural events at their hotel placements.
190
In
terminating the company‘s Q-based program, the government noted a lack
of evidence ―that would show the public is coming to the hotel for cultural
enlightenment‖ and that ―any exchange of information is incidental to the
work being done by the beneficiaries for the hotel.‖
191
Central to this
holding was the government‘s position that the purpose of the erstwhile
international cultural program was ―internal business interests‖ of the
company and not ―a more general sharing of the history, culture, and
traditions of the country of the alien‘s nationality.‖
192
The government‘s
position is particularly ironic given that the ―internal business interests‖ of
Disney in building a profitable business around the sharing of international
history, culture, and traditions prompted the development of the Q visa in
the first place.
Perhaps more intriguing is how Disney has managed to achieve a
measure of general union acceptance for its Cultural Representative
Program. While union representatives often field calls from members who
complain about the domestic and international students who are
encroaching upon their roles, there is a feeling that American workers
simply could not fill the roles held by ―authentic‖ cast members.
193
This is
a startling achievement given union concerns about the program when
Epcot first opened in 1982.
194
The fact is that the Disney Cultural Representative Program operates
well. It manages to hold fast within the statutory and regulatory guidelines
that bind it, which, as discussed below, is a feat Disney hasn‘t been able to
manage with its international college programs. Of course, why shouldn‘t
the program be a success? It was literally created by and for Disney.
And therein lies the rub. What does the Q visa story say about
immigration reform? President Barack Obama has called for immigration
reform that ―reflects our values as a nation of laws‖ and ―demands
accountability from everybody—from government, from businesses and
from individuals.‖
195
In this story, Disney was facing a business problem
189. Id.
190. Id. at 1–2.
191. Id. at 3.
192. Id.
193. Jerkovich Interview, supra note 130; see also Schneider, supra note 140 (―Regular
workers sometimes grumble about the college interns when business is slow and their work hours
are cut back, such as after the Sept. 11 terrorist attacks.‖).
194. Dickson Case Study, supra note 32, at 3–4.
195. Obama, supra note 12.
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(cultural authenticity), tried one solution (the J visa), was facing potential
backlash (GAO investigation), and responded by creating its own law. If
the country truly seeks value-based reform focused on accountability, it
must open its eyes to the ways in which reform can be so easily captured.
IV. WHISTLE WHILE YOU WORK:
196
THE J VISA AND DISNEY‘S
INTERNATIONAL COLLEGE PROGRAM
Currently, about half of Disney‘s international cast members come to
the resort on J student visas as participants in the Disney International
College Program.
197
As discussed in the prior section, Walt Disney World
has been bringing international cast members to the resort on J visas since
the Epcot theme park opened in 1982.
This section takes a close look at the history of J visas, focusing on
how the visa came to be and what Congress hoped to achieve with it. I then
set out the statutory requirements for the visa. Next, I discuss the three
different ―experiences‖ that comprise the Disney International College
Program. The central issue uncovered in examining the first of those
experiences, Disney‘s Academic Exchange Experience, is how Disney has
taken advantage of the ambiguous concept of J visa-based ―academic
training‖ to staff unskilled positions within its parks. An investigation of
Disney‘s other two experiences, the Summer Work Experience and the
Australia/New Zealand Work Experience, shows how Disney has taken
advantage of the fact that those who enacted J visa regulations
impermissibly reached beyond the statute intended to confine their actions.
A. It‟s a Small World:
198
The History of the J Visa
The J visa has been in existence since 1961. It is a product of the
Mutual Educational and Cultural Exchange Act of 1961, also called the
Fulbright–Hays Act after Senator J. William Fulbright, who was then
chairman of the Senate Foreign Relations Committee.
199
Its history,
however, dates back to 1939. In August of that year, Congress enacted a
law
200
relating to educational cooperation with Latin America that
provided, among other things, for international student exchanges
196. Whistle While You Work is a song from the Disney movie Snow White and the Seven
Dwarfs. ADRIANA CASELOTTI, Whistle While You Work, on SNOW WHITE AND THE SEVEN DWARFS
(Walt Disney 2008).
197. Arledge Interview, supra note 26; compare Bevil, supra note 186 (estimating Epcot‘s Q
visa recipients to be 1,300), with Dickson Interview, supra note 17 (estimating the resort‘s total
international workforce to be less than 2,000).
198. It‟s a Small World is the name of a ride found at Walt Disney World‘s Magic Kingdom
and Disneyland as well as the rides‘ eponymous theme song. See, e.g., “It‟s a Small World”: Walt
Disney World Resort, DISNEY, http://disneyworld.disney.go.com/parks/magic-kingdom/attractions/
its-a-small-world/ (last visited Mar. 22, 2011).
199. Pub. L. No. 87-256, 75 Stat. 527 (1961).
200. Pub. L. No. 76-355, 53 Stat. 1290 (1939) (―To authorize the President to render closer
and more effective the relationship between the American republics.‖).
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monitored by the Department of State.
201
The ―[p]rimary emphasis‖ of the
law was on ―the increase of mutual understanding through personal
relationships between leaders of thought and opinion in all fields.‖
202
The 1948 United States Information and Educational Exchange Act,
203
better known as the Smith–Mundt Act,
204
expanded the 1939 Act beyond
the Western Hemisphere. Section 201 of the Smith–Mundt Act authorized
the Secretary of State to ―provide for interchanges on a reciprocal basis
between the United States and other countries of students, trainees,
teachers, guest instructors, professors, and leaders in fields of specialized
knowledge or skill.‖
205
Visitors under this program were considered
―nonimmigrant visitors for business,‖
206
and later just unspecified
―nonimmigrants,‖
207
present in the United States for a finite period before
returning to their country of origin.
The legislative reports that discussed the purpose and need for the
Smith–Mundt Act echoed the 1939 call for ―mutual understanding between
the people of the United States and of other countries.‖
208
Congress argued
that such ―mutual understanding‖ was necessary to ―correct
misunderstandings about the United States abroad.‖
209
[T]he importance of maintaining such a program cannot be
gainsaid. The American people, our ideals, and our form of
government are being misrepresented and distorted abroad by
the propaganda of other nations. The prestige of the United
States and of democracy itself are suffering as a result of this
unequal battle of ideas. We must be able to tell abroad the
truth about the United States. We cannot afford to let others
tell that story for us.
210
One thing that was not spelled out in the Smith–Mundt Act was how to
deal with exchange visitors who wanted to stay in the United States after
201. See 10 DEP‘T ST. BULL. 213, 215–16 (Mar. 4, 1944).
202. Id. at 216.
203. Pub. L. No. 80-402, 62 Stat. 6 (1948).
204. See Naomi Schorr & Stephen Yale-Loehr, The Odyssey of the J-2: Forty-Three Years of
Trying Not to Go Home Again, 18 GEO. IMMIG. L.J. 221, 224 (2004).
205. Pub. L. No. 80-402, 62 Stat. 6 (1948).
206. S. REP. NO. 80-811, at 8 (1948).
207. After the passage of the Immigration and Nationality Act of 1952, § 201 of the Smith–
Mundt Act was revised to indicate that exchange students would be classified as nonimmigrants
under Immigration and Nationality Act‘s § 101(a)(15). See Pub. L. No. 82-414, § 402, 66 Stat. 163,
276–77 (1952); Schorr & Yale-Loehr, supra note 204, at 226–27. The lack of a specific
nonimmigrant visa for exchange students led to ―considerable difficulties and confusion‖ with such
aliens ―variously, and rather haphazardly, issued different types of statutorily established
nonimmigrant visas.‖ H.R. REP. NO. 87-1094, at 16 (1961).
208. S. REP. NO. 80-573, at 1 (1947); see also H.R. REP. NO. 80-416, at 3 (1947).
209. S. REP. NO. 80-573, at 1; see also H.R. REP. NO. 80-416, at 4 (―A secondary, although
highly important, objective of the bill is to correct misunderstandings and misinformation about the
United States which exist in other parts of the world.‖).
210. S. REP. NO. 80-811, at 13.
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the conclusion of their exchange programs. President Dwight Eisenhower
strongly urged the passage of a new law to require ―that exchange
personnel return home and remain there for a minimum period before
being eligible to reenter the United States for permanent residence.‖
211
He
argued that this would be the only effective means for achieving the
program‘s basic objectives: (1) promoting international understanding and
(2) allowing the countries of origin to benefit from their citizens‘ United
States training.
212
Congress obliged. In 1956, the Smith–Mundt Act was amended to
require exchange participants to reside and be physically present overseas
for at least two years following their departure from the United States.
213
The Fulbright–Hays Act of 1961 followed.
214
Its purpose was to
―consolidate, expand, and simplify both the scope and the administration of
[U.S.] international educational and cultural exchange program[s],‖
215
which included, among others, the Smith–Mundt Act.
216
The Act authorized ―educational exchanges‖ open to ―students,
trainees, teachers, instructors, and professors‖
217
as well as ―other
exchanges . . . promoting studies, research, instruction, and other
educational activities of citizens and nationals of foreign countries in
American schools, colleges, and universities located in the United
States.‖
218
It also authorized separate ―cultural exchanges‖ for limited
categories of specialized activities such as creative performing artists and
athletes.
219
The Act fixed the problem of how to define these exchange visitors for
purposes of immigration law by creating a new visa category—the J visa—
solely to serve the purposes of the Fulbright–Hays Act.
220
This new J visa
applied, and continues to apply, to:
an alien having a residence in a foreign country which he has
no intention of abandoning who is a bona fide student,
scholar, trainee . . . who is coming temporarily to the United
211. 101 CONG. REC. 7606 (1955).
212. Id. at 7605; see also S. REP. NO. 84-1608, at 4 (1956) (―It is in the interest of the United
States that these people return home and contribute toward developing friendly relations between
their country and ours.‖).
213. Pub. L. No. 84-555, 70 Stat. 241 (1956); see also Schorr & Yale-Loehr, supra note 204,
at 228.
214. Mutual Educational and Cultural Exchange Act of 1961, Pub. L. No. 87-256, 75 Stat. 527
(codified as amended at 22 U.S.C. §§ 2451–2464 (2006)).
215. 107 CONG. REC. 18,268, 18,273 (1961) (statement of Rep. Lindsay).
216. Id. at 18,270 (statement of Rep. Hays) (noting the then-proposed Act would codify
programs found in the Fulbright amendment to the Surplus Property Act of 1944, the Smith–Mundt
Act, the International Cultural Exchange and Fair Trade Participation Act of 1946, the Finnish Debt
Payments Act of 1949, and parts of Public Law 480).
217. 22 U.S.C. § 2452(a)(1)(ii) (2006).
218. Id. § 2452(b)(10).
219. Id. § 2452(a)(2)(ii).
220. H.R. REP. NO. 87-1094, at 16 (1961); see also H.R. REP. NO. 87-1197, at 17 (1961) (Conf.
Rep.).
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States as a participant in a program designated by the Director
of the United States Information Agency,
[221]
for the purpose
of . . . studying, observing, . . . consulting, demonstrating
special skills, or receiving training . . . .
222
Notably, the Act also codified the requirement that J visa recipients
typically must reside overseas for two years following the conclusion of
their J visa program before returning to the United States.
223
Congress‘ statement of purpose for the new law largely echoed
language justifying the past twenty-two years of legislation:
The purpose of this chapter is to enable the Government of
the United States to increase mutual understanding between
the people of the United States and the people of other
countries by means of educational and cultural exchange; to
strengthen the ties which unite us with other nations by
demonstrating the educational and cultural interests,
developments, and achievements of the people of the United
States and other nations, and the contributions being made
toward a peaceful and more fruitful life for people throughout
the world; to promote international cooperation for
educational and cultural advancement; and thus to assist in the
development of friendly, sympathetic, and peaceful relations
between the United States and the other countries of the
world.
224
The House Report regarding the Fulbright–Hays Act was more
pointedly directed at the Cold War fears prevalent at the time of the Act‘s
passage:
225
Present-day governments give a high priority to educational
and cultural exchanges. While political and economic affairs
are the province of a relatively few individuals, educational
and cultural programs are by their very nature a people-to-
people activity. A lecturer catches young minds. A student
gains experiences that shape his mature years. Cultural
exchanges as in music or art can reach thousands at a time. In
the current struggle for the minds of men, no other instrument
221. The United States Information Agency no longer exists. Its duties have been assumed by
the State Department. And the State Department has authorized Disney‘s J visa trainee programs.
See Designated Sponsors List, U.S. DEP‘T OF STATE, http://eca.state.gov/jexchanges/index.cfm?sc=
Disney&fuseaction=record.list&mode=search&state= (last visited Feb. 27, 2011).
222. 8 U.S.C. § 1101(a)(15)(J) (2006).
223. 8 U.S.C. § 1182(e) (2006); 87 H.R. REP. NO. 1197, at 17 (Conf. Rep.).
224. 22 U.S.C. § 2451 (2006); see also 22 C.F.R. § 62.1(a) (2011) (―The purpose of the Act is
to increase mutual understanding between the people of the United States and the people of other
countries by means of educational and cultural exchanges.‖).
225. See Schorr & Yale-Loehr, supra note 204, at 232–33.
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of foreign policy has such great potential.
226
Congress saw in the Act the potential for drawing members of the
international community into a pro-American, and thus anti-communist,
stance by means of education and cultural exchange.
227
B. We‟re All in This Together:
228
Disney‟s J Visa Programs
Every student in the Disney International College Program must obtain
a J visa.
229
However, the regulatory requirements for obtaining that visa
differ dramatically among the three ―experiences‖ that Disney offers to
international students. In the following sections, I describe each experience
as well as its regulatory underpinnings, discussing how the programs
comply or attempt to comply with the underlying goals of the J visa
legislation.
1. The Emperor‘s New School:
230
The Academic Exchange
Experience
Disney‘s Academic Exchange Experience (AEE) falls under the
purview of the federal J visa regulations governing international college or
university exchange students. Those regulations provide two kinds of
opportunities for foreign students: an internship program or a college
student exchange program. Perhaps surprisingly, Disney‘s AEE program is
offered not as an internship program, but as a student exchange program.
Disney does not sponsor internships because of the regulatory
restrictions on such programs.
231
Qualifying internship programs ―must not
be used as substitutes for ordinary employment or work purposes,‖ cannot
226. H.R. REP. NO. 87-1094, at 1 (1961); see also 107 CONG. REC. 11,401 (1961) (statement of
Sen. Fulbright).
227. These goals were very much in line with those of Senator Fulbright himself, who one
academic has described as seeking ―nothing less than the creation of a pro-American global order,
one conceived in the image of our domestic values.‖ EUGENE BROWN, J. WILLIAM FULBRIGHT:
ADVICE AND DISSENT 42 (1985).
228. We‟re All in This Together is a song from the Disney Channel‘s runaway hit High School
Musical. HIGH SCHOOL MUSICAL CAST, We‟re All in This Together, on HIGH SCHOOL MUSICAL
(Walt Disney Records 2006).
229. It is worth noting that the United States has two additional visas available to foreign
students seeking to study in the United States. There is an M visa, which applies to students
pursuing a full course of study at an established vocational or other non-academic institution. 8
U.S.C. § 1101(a)(15)(M)(i) (2006). There is also an F visa for students pursuing a full course of
study at an established academic institution. Id. § 1101(a)(15)(F)(i). These visas are less appealing
to Disney than the J visa because they restrict student employment. Students participating in the M
visa program are unable to accept employment apart from limited practical training after completion
of their studies. 8 C.F.R. § 214.2(m)(13), (14) (2010). Those in the United States under an F visa
are limited in the number of hours per week that they can work and they also face significant
restrictions on off-campus employment. 8 C.F.R. § 214.2(f)(9) (2010).
230. The Emperor‟s New School is the name of an animated television series that aired on the
Disney Channel.
231. Arledge Interview, supra note 26.
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be used ―to displace American workers,‖ require ―substantial academic
framework in the participant‘s field,‖ and should not include ―unskilled
labor.‖
232
As will be discussed in further detail below, it would be
impossible for Disney to meet those requirements.
Instead, Disney carves out flexibility for itself with the student
exchange provision. The regulatory language provides ―foreign students
the opportunity to participate in a designated exchange visitor program
while studying at a degree-granting post-secondary accredited academic
institution.‖
233
Disney is not an accredited academic institution, so Disney
itself cannot sponsor AEE students. Instead, Disney works with several
U.S. institutions of higher learning
234
that serve as the sponsors of such
students.
To get to Disney while threading the regulatory needle, international
students obtain a nomination from their overseas educational institutions,
apply to and are accepted into a U.S. college or university that works with
Disney,
235
and then must be accepted by Disney into the AEE.
236
The international students who are chosen to participate in the AEE are
considered to be full-time college students.
237
As such, they are required to
undertake coursework while at Disney.
238
They may take Disney‘s own on-
site and tuition-free
239
collegiate-level courses such as hospitality,
management, or marketing.
240
Or they may undertake distance learning
232. 22 C.F.R. § 62.22(b)(1)(ii) (2010).
233. Id. § 62.23(a).
234. Disney currently works with the following U.S. institutions: Central Michigan University,
Delaware State University, Dickinson State University, East Carolina University, Emporia State
University, Florida State University, Hampton University, Jackson State University, Louisiana State
University, Montclair State University, Murray State University, Rollins College, San Diego State
University, Tompkins Cortland Community College, Troy University, and University of California-
Riverside. See Academic Exchange Experience: Participating Schools, DISNEY INT‘L PROGRAMS,
https://www.disneyinternationalprograms.com/j1.html (last visited Feb. 28, 2011).
235. The affiliated U.S. institutions are constantly changing. In October 2010, Disney was
working with University of California-Riverside, Louisiana State University, Montclair State
University, Murray State University, Delaware State University, Hampton University, Central
Michigan University, Troy University, Dickinson State University, Florida State University, Rollins
College, East Carolina University, San Diego State University, and Tompkins Cortland Community
College. See Academic Exchange Experience: Participating Schools, DISNEY INT‘L PROGRAMS,
https://www.disneyinternationalprograms.com/j1.html (last visited Feb. 28, 2011). The list has now
expanded to include Jackson State University and Emporia State University.
236. Arledge Interview, supra note 26.
237. Id.
238. Academic Exchange Experience: Program Overview, DISNEY INT‘L PROGRAMS,
https://www.disneyinternationalprograms.com/aee.html (last visited Feb. 28, 2011).
239. Academic Exchange Experience: FAQs, DISNEY INT‘L PROGRAMS, https://www.disney
internationalprograms.com/j1/faq_intro.html (last visited Feb. 28, 2011). Tuition is free, but
students are responsible for the cost of textbooks and materials. Id.
240. Some of these classes include Advanced Studies in Hospitality Management, Corporate
Analysis, Corporate Communication, Human Resource Management, and Organizational
Leadership. See Academic Exchange Experience: Collegiate Course Information, DISNEY INT‘L
PROGRAMS, https://www.disneyinternationalprograms.com/j1/education_collegiate.html (last visited
28
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with their overseas or U.S. institutions.
241
Unlike most international exchange students, AEE participants do not
have to pursue a full course of college or university study while in the
United States.
242
That is because of regulations that allow students who
participate in ―authorized academic training‖ to pursue something less than
a full course of study.
243
What ―academic training‖ means is important, but the term is without a
clear definition. As odd as it may seem, ―academic training‖ is defined
neither by regulation
244
nor by statute.
245
A search of Web-based
immigration resources, including decisions from the Board of Immigration
Appeals and other primary source documents, also does not yield a
definition of the term. What that search does reveal is the use of the phrase
―academic training‖ as a synonym for academic study or background, in
contrast to practical training.
246
The regulatory section discussing ―academic training‖ in the context of
J visas simply states that such training can last up to eighteen months.
247
It
also notes that the training can be compensated (and indeed is compensated
at Disney) and can be undertaken concurrently with a course of study,
248
so
long as the student:
―is primarily in the United States to study rather
than engage in academic training‖;
249
Feb. 28, 2011); Seminar Offerings for the Walt Disney World, Co. International Academic
Program, DISNEY ADVENTURE, http://www.thedisneyadventure.moonfruit.com/#/ufc-
modules/4526522832 (last visited Feb. 28, 2011).
241. Arledge Interview, supra note 26.
242. See 22 C.F.R. § 62.23(e) (2010) (―A student . . . must pursue a full course of study at a
post-secondary accredited academic institution in the United States as defined in § 62.2, except
under the following circumstances . . . .‖); id. § 62.2 (2010) (noting that a ―[f]ull course of study‖
for college and university students is ―defined by the accredited educational institution in which the
student is registered‖).
243. Id. § 62.23(e)(5), (f).
244. See id. § 62.2 (definitions).
245. The term ―academic training‖ does not appear in the Immigration and Nationality Act.
246. See, e.g., Matter of Treasure Craft of Calif, 14 I. & N. Dec. 190, 191 (BIA 1972),
available at 1972 WL 27434 (―It was added that there would be no academic training as all training
is on-the-job training . . . .‖); Matter of Perez,12 I. & N. Dec. 701, 702 (BIA 1968), available at
1968 WL 14089 (―Although talented writers with little or no academic training beyond high school
sometimes become reporters, an increasing number of newspapers will consider only applicants
with college education; graduate work is also becoming increasingly important.‖ (internal quotation
marks and external citation omitted)). It would also be possible to understand ―academic training‖
to mean training an individual with aspirations of becoming a professor, a point that has required
clarification by at least one institution. See, e.g., Academic Training, BERKELEY INT‘L OFFICE, UNIV.
OF CALIF., BERKELEY, http://internationaloffice.berkeley.edu/students/training/j-1/academic_training
(last visited Feb. 28, 2011) (―Academic Training is a type of off-campus work authorization for
employment in a student‘s field of study (does not need to be an ‗academic‘ job).‖).
247. 22 C.F.R. § 62.23(f)(4)(ii).
248. Id. § 62.23(f)(2).
249. Id. § 62.23(f)(3)(i).
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―is participating in academic training that is
directly related to his or her major field of
study‖;
250
―is in good academic standing‖;
251
and
―receives written approval in advance from the
responsible officer for the duration and type of
academic training.‖
252
At Disney, AEE students undertake ―academic training‖ by working in the
Disney World theme parks some thirty to thirty-five hours a week.
253
Sponsoring U.S. colleges routinely screen AEE participants for three of
the four regulatory criteria for academic training: academic study,
academic standing, and academic preapproval. That is, the U.S. institutions
typically open their programs to students with specified majors—such as
tourism, hospitality, or business—who are in good academic standing
254
and who have been recommended by their foreign institutions.
255
It is far
more difficult to assess whether the student‘s primary motive in coming to
the United States is for study or for the Disney academic training
experience.
Some students come for the training, certainly. But not all. One former
cast member blogged:
[T]here are three kinds of people that do the WDW College
Program:
[256]
Disney-lovers who jump at the chance to work
in the Parks and maybe start a Disney career; students who
think the idea of getting college credit for a semester in the
Florida sun at the ―Happiest Place on Earth‖ sounds like a lot
more fun than regular class at their school, even though they
don‘t feel especially drawn to Disney; students who have
heard ―through the grape-vine‖ that Vista Way is an intense
place to party and ―get laid‖ and they don‘t care about Disney
at all. . . . [A]bout 20 percent are Disney-lovers, 50 percent
want to get college credit for fun in the sun, and 30 percent
are only there to party, (these are generous percentages, since
250. Id. § 62.23(f)(3)(ii).
251. Id. § 62.23(f)(3)(iii).
252. Id. § 62.23(f)(3)(iv).
253. See Academic Exchange Experience: FAQs, supra note 239.
254. See, e.g., Disney‟s International College Program, CENT. MICH. UNIV., http://www.cel.
cmich.edu/Disney/ (last visited Feb. 7, 2011) (―The Program is a best-fit for undergraduate students
who are studying Tourism, Leisure, Business, Hospitality, Communications, and/or Sports and
Recreation.‖); Academic Exchange Experience, DICKINSON STATE UNIV., http://wdwcollegeprogram
ecard.com/international/survey/aee_schools/dickinson.html (last visited Feb. 28, 2011) (―Major in
tourism, hospitality, business, management, communication, English, human resources or related
field of study, as approved.‖).
255. Arledge Interview, supra note 26.
256. The blogger was commenting in particular on a program for U.S. students that is the
AEE‘s domestic analog.
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it felt like there were a lot less Disney-lovers and a lot more
partiers).
257
On the one hand, sponsoring institutions may try to combat the ―false‖
intent problem through their application procedures (―Why do you want to
come to our university and participate in the Disney International College
Program?‖) and academic requirements (French literature majors need not
apply). Indeed, the federal regulations require, as a prerequisite for
authorization to engage in academic training, a letter of recommendation
from the student‘s dean or advisor explaining, among other things, why the
training ―is an integral or critical part of the academic program of the
student.‖
258
On the other hand, it is important to remember that international
students are learning about the Academic Exchange Experience from
Disney itself. Disney‘s Web site touts the Disney International College
Program as providing an ―opportunity to develop real-world experience,
meet Guests and Cast Members from around the world, and take part in a
life-changing opportunity‖ unavailable anywhere else.
259
Disney actively
lures students to the program with the promise that they will ―[l]earn
important business philosophies and transferable skills from Disney
leaders‖ and will ―[g]ain real-world experience from a highly admired
company, which can be invaluable on any CV and noticed by future
employers.‖
260
For those international students with aspirations of careers in
hospitality, the allure of the Disney International College Program is
obvious. They will ―have the opportunity to learn skills that will be
valuable to them in many of their future endeavors,‖ and ―the opportunity
to make professional connections with leaders from a variety of disciplines
through numerous networking events.‖
261
But Disney looks beyond these
students. It advertises the ―transferable skills‖ to be gained from its
program, ―including Guest service, effective communication, teamwork,
leadership, self-confidence, responsibility and cultural sensitivity.‖
262
Thus, although Disney is not the visa sponsor for AEE students, it is
the architect and driver of the AEE. And what Disney is selling is the
opportunity to engage in academic training—that is to say, work—not
study. Of course, this discussion entirely bypasses the most significant
issue of all: How can working at Disney World be considered ―academic
training‖ at all?
257. Hill, supra note 142 (discussing the parallel Disney College Program).
258. 22 C.F.R. § 62.23(f)(5)(i)(D) (2010).
259. International College Program: Program Overview, DISNEY INT‘L PROGRAMS,
https://www.wdwcollegeprogram.com/sap/its/mimes/international/icp.html (last visited Feb. 28,
2011).
260. Id.
261. Id.
262. Id.
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a. Bibbidi-Bobbidi-Boo:
263
Disney‘s College Courses
At first blush, it would seem that by taking Disney‘s collegiate courses
or courses from a U.S. host college, international students are assured of
receiving ―academic training.‖ Consider just one of the courses offered by
Disney: Corporate Analysis. Students in this course take an in-depth look
at the Walt Disney Company, including its corporate history, structure,
governance, performance, and culture, as well as its core concepts of
innovation, globalization, community responsibility, and diversity.
264
The problem with this argument is that Disney‘s collegiate courses
count for academic credit.
265
The coursework is considered part of the
concurrent course of study that an academic training participant can
undertake;
266
it is not the academic training itself. For AEE participants, it
is actually the labor that the student/cast member performs at the theme
park that amounts to ―academic training.‖
b. Zip-a-Dee-Doo-Dah:
267
Orientation, Disney-Style
How international students are trained by Disney before they take on
their theme park roles is illuminating. All new Walt Disney World cast
members, including international students, are required to begin their time
at the resort by attending a day-and-a-half training session known as
Traditions.
268
Through Traditions, new cast members learn about the Walt
Disney World Company‘s history, underlying philosophy, quality
standards, and achievements.
269
They are ―instructed in the importance of
creating a sense of happiness for guests and the distinctive Disney
language and the rationale for it.‖
270
They also learn about their roles at
Disney, which include how to be part of the resort show
271
with a ―ready
smile‖ and the ability to deal pleasantly with large numbers of people.
272
They must remember that ―regardless of the role in which [the student] is
cast, [his or her] position will be ‗magic maker‘ for [the Disney] guests.‖
273
263. Bibbidi-Bobbidi-Boo is a song from the Disney movie Cinderella. VERNA FELTON,
Bibbidi-Bobbidi-Boo, on CINDERELLA (Walt Disney Records 1950).
264. Disney Corporate Analysis Course Syllabus, DISNEY INT‘L PROGRAMS, https://www.disney
internationalprograms.com/_assets/pdf/corp_analysis.pdf (last updated Aug. 2010).
265. American Council on Education: Course Summaries and Credit Recommendations,
DISNEY INT‘L PROGRAMS, https://www.disneyinternationalprograms.com/_assets/pdf/ACEDoc.pdf
(last visited Mar. 20, 2011).
266. 22 C.F.R. § 62.23(f)(2) (2010).
267. Zip-a-Dee-Doo-Dah is a song from the Disney movie Song of the South. JAMES BASKETT,
Zip-a-Dee-Doo-Dah, on SONG OF THE SOUTH (Disneyland 1956).
268. Jerkovich Interview, supra note 130.
269. See BRYMAN, supra note 15, at 108 box 5.1; see also Academic Exchange Experience:
FAQs, supra note 239 (―Participants will spend their first official day of work in Disney Traditions
class.‖).
270. See BRYMAN, supra note 15, at 108 box 5.1.
271. Id.
272. Id. at 109.
273. E-Presentation: Disney College Program, DISNEY COLLEGE PROGRAM, http://wdwcollege
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From Disney‘s perspective, its cast members are trained in a
fundamentally different way from employees anywhere else in the world.
Even accepting this as true, the length of the Traditions program highlights
an issue that is not addressed by the federal regulations: How time-
consuming or in-depth must the ―training‖ portion of ―academic training‖
be? An international student at Disney for one year will work,
conservatively, 1,500 to 2,000 hours.
274
It seems contrary to legislative
intent to justify a visa based upon a single twelve-hour training session,
amounting to less than .008% of the students‘ time in the program.
275
c. With a Smile and a Song:
276
On-the-Job Experience at Walt
Disney World
In the end, ―academic training‖ at Disney really comes down to the
roles that students hold in the parks. The strongest argument Disney can
make that it is providing academic training is that each role held by an
international student offers the chance to practice the Disney philosophy in
a supervised environment for an extended period of time. Thus, the
argument goes, it is this ongoing, on-the-job learning and experience that
amounts to ―academic training.‖ The problem with this argument lies in the
nature of the international students‘ on-the-job experience.
Some roles for international students seem to inherently qualify as
academic training, in the sense that the roles seem connected to the
students‘ underlying academic pursuits. Take the roles of concierge or
resort hospitality (for hospitality majors) or character performer (for theater
majors).
277
But what about students who work in the Disney water parks as
lifeguards,
278
hand out towels and locker keys to guests,
279
or fill soft drink
programecard.com/epresentation (last visited Feb. 28, 2011) (go to ―Chapter Menu,‖ then go to
Chapter 7 at 00:34).
274. This is based on fifty weeks of working thirty to forty hours a week. Interview with
―Riley,‖ Cast Member, Walt Disney World, in Orlando, Fla. (Mar. 2, 2010) [hereinafter Riley
Interview]. However, Disney ―requires all . . . cast members to be fully available. This means
working nights, weekends, holidays, and overtime during certain peak seasons.‖ E-Presentation:
Disney College Program, supra note 273 (go to ―Chapter Menu,‖ then go to Chapter 7 at 1:39).
275. Of course, if a student took advantage of just one collegiate course—take Corporate
Analysis which includes thirty-seven contact hours and twenty-four hours of directed activities—
then only 3%–4% of their time in the program would be spent on educational content. See Disney
Corporate Analysis Course Syllabus, supra note 264.
276. With a Smile and a Song is a song from the Disney movie Snow White and the Seven
Dwarfs. ADRIANA CASELOTTI, Animal Friends/With a Smile and a Song, on SNOW WHITE AND THE
SEVEN DWARFS (Walt Disney 2008).
277. Academic Exchange Experience: Role Descriptions, supra note 29.
278. Interview with ―Guadalupe,‖ Cast Member, Walt Disney World, in Orlando, Fla. (May
28, 2009); Interview with ―Mizuki,‖ Cast Member, Walt Disney World, in Orlando, Fla. (May 28,
2009); see also The Lifeguard Bit, THE DISNEY ADVENTURE, http://www.thedisneyadventure.mo
onfruit.com/#/the-lifeguard-bit/4526530940 (last visited Feb. 28, 2011); Marc Greenhill, Lincoln
Graduates Land Jobs in Disney World, THE PRESS, Feb. 19, 2010, http://www.stuff.co.nz/the-
press/news/3347148/Lincoln-graduates-land-jobs-in-Disney-World.
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orders?
280
International students hold roles in quick-service food and
beverage at all of the Disney theme parks, taking orders, making change,
clearing plates, and filling empty condiment dispensers.
281
The most curious role, however, must be that of the ―showkeeper,‖
which is Disney-speak for custodial staff.
282
International students in this
―role‖ clean bathrooms, empty and line trashcans, clean benches and
streets, and eliminate ―protein spills‖ (the euphemism used by Disney
employees for vomit).
283
Disney believes that showkeepers are at the core
of ―onstage‖ work. Custodians, in their visible white jumpsuits, interact
with the public frequently by providing directions,
284
taking photographs,
and recommending eateries. Such frequent guest contact ―means a lot of
opportunities to create Disney magic‖
285
and practice the skills learned in
Disney‘s orientation program.
The view that such work ought to count as academic training is
somewhat bolstered by the perspectives recorded on employees‘ blogs.
Several bloggers, in writing about the parallel Disney College Program,
have focused on the concept of ―creating Disney magic.‖ They have argued
that it is always up to the individual student to keep a role from being mere
work and to transform it into a Disney experience:
[I]t really is what you make of it. You can go to work and just
refill the napkin containers and hate your job, or you can go
out there, refill the napkin containers, interact with the guests,
and help make someone‘s trip that much more easy and
279. Interview with ―Angel,‖ Cast Member, Walt Disney World, in Orlando, Fla. (May 28,
2009).
280. Interview with ―Dominique,‖ Cast Member, Walt Disney World, in Orlando, Fla. (May
28, 2009).
281. Interview with ―Xei,‖ Cast Member, Walt Disney World, in Orlando, Fla. (May 28, 2009)
[hereinafter Xei Interview].
282. Ben Hultum, The End of a Wonderful Journey . . ., ONE MAN AND HIS BROOM: THE BLOG
OF A SHOWKEEPER (Oct. 6, 2006, 1:10 AM), http://bensdisneyexperience.blogspot.com/.
283. Ben Hultum, Hello Folks!, ONE MAN AND HIS BROOM: THE BLOG OF A SHOWKEEPER (July
11, 2006, 12:32 PM), http://bensdisneyexperience.blogspot.com/2006_07_01_archive.html; see
also Ben Hultum, Fun Time at Work!, ONE MAN AND HIS BROOM: THE BLOG OF A SHOWKEEPER
(Oct. 6, 2006, 4:19 AM), http://bensdisneyexperience.blogspot.com/2006_06_01_archive.html.
284. See Ben Hultum, Hello Folks!, ONE MAN AND HIS BROOM: THE BLOG OF A SHOWKEEPER
(July 11, 2006, 12:32 PM), http://bensdisneyexperience.blogspot.com/2006_07_01_archive.html
(―[Y]esterday, a man and his daughter approached me who couldnt [sic] speak/understand much
English, he knew VERY little. He wanted to get to the Sci-Fi restsurant [sic]//theater thing—I knew
this because the only words I could distinguish were ‗Sci-Fi‘ and ‗food in cars‘. [sic] I would have
NEVER been able to direct the poor chap, so I became his personal escort for all of 15 minutes to
make sure they got there[,] which made me feel better knowing I never sent a guest the wrong
way . . . .‖).
285. Ben Hultum, The Journey So Far . . . (Part 3), ONE MAN AND HIS BROOM: THE BLOG OF A
SHOWKEEPER (Apr. 11, 2006, 2:50 AM), http://bensdisneyexperience.blogspot.com/2006_04_01_
archive.html.
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enjoyable.
286
* * *
[Quick Service Food and Beverage] cast have their own
special way of ―making the magic‖ for guests- and even
though a lot of people who go into the role initially may not
be too enthused, they end up loving it before they leave. . . .
It‘s also possible that in this role, you‘ll be given a certain
amount of liberty to work independently in the field, which
can be pretty fun.
287
While such views suggest that there is a worthwhile experience to be
had for optimists, it appears contrary to legislative intent to authorize J visa
programs based upon what the participants are able to make of them, rather
than what they actually are. After all, the term ―academic training‖ implies,
at a minimum, some sort of ongoing guidance, leadership, and learning. It
does not imply self-study. Ultimately, it is difficult to see the majority of
the roles at Disney as fulfilling Congress‘ stated goal of educational
advancement for exchange visitors.
288
d. I Wan‘na Be Like You:
289
Training Disney‘s International
Workforce
The insufficiency of the ―academic training‖ under the AEE is made
evident by the way in which Disney set about training its own future
employees of Hong Kong Disneyland. Disney invited 500 of Hong Kong
Disneyland‘s managers and cast members to Walt Disney World for five
months.
290
The trainees worked at the resort and were required to take
seminars on ―customer service, marketing, leadership and the history and
philosophy behind Disney‘s entertainment empire.‖
291
The manager of
operations for Walt Disney World called the intensive training ―critical,‖
noting that when the 500 workers returned to Hong Kong, ―they‘re going
to basically have to instill the culture in people who haven‘t had the
opportunity to come here for training.‖
292
One would think that the preparation Disney required of its own
trainees should be the baseline for the academic training participants in the
286. Posting of xfkirsten to VisionsFantastic.com, Disney College Program? (Mar. 14, 2008,
5:30 PM), http://www.visionsfantastic.com/forum/f62/disney-college-program-21865/.
287. Chris Saribay, Inside the Roles (I), DISNEY EDITION (Mar. 11, 2008, 12:00 AM),
http://chrissaribay.com/disney-blog/.
288. 22 U.S.C. § 2451 (2006) (stating that the purpose of the act is to ―promote international
cooperation for educational and cultural advancement‖).
289. I Wan‟na Be Like You is a song from the Disney movie The Jungle Book. PHIL HARRIS, I
Wan‟na Be Like You (The Monkey Song), on THE JUNGLE BOOK (Walt Disney Records 1967).
290. Mike Schneider, Small World Much Different for Workers, CHI. TRIB., Apr. 29, 2005,
News Section, at 14.
291. Id.
292. Id.
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AEE are supposed to receive. Yet it is not. Rather than receiving five
months of intensive training, AEE students may only receive a single day
and a half of orientation. This is clearly not what regulators had in mind
when authorizing ―academic training‖ much less what Congress had in
mind when creating ―educational exchanges.‖
2. Jolly Holiday:
293
The Summer Work Experience
The second experience offered through Disney‘s International College
Program is the Summer Work Experience (SWE). The SWE differs from
the AEE in many ways and, in fact, has an entirely different regulatory
underpinning. This section will examine Disney‘s SWE and its unique
regulatory background. This examination makes clear that Disney is in full
compliance with the federal regulations, but that the regulations themselves
are not in compliance with the underlying statute and so are subject to
challenge.
The SWE program falls within federal regulations concerning
―Summer Work Travel.‖
294
Summer Work Travel programs allow
international post-secondary students to work and travel in the United
States for a single, nonextendable, four-month visit over their summer
vacations.
295
They are collegiate in the sense that they are ―[d]esigned for
use by college students or at college level.‖
296
In contrast to other J visa-
based programs, however, Summer Work Travel programs are not
collegiate in the sense of ―belonging to a college.‖
297
Indeed, the federal regulations do not require Summer Work Travel
programs to include any academic component. Disney nonetheless features
―[e]ducation‖ prominently in its online overview of the program,
promoting the availability of Disney Learning Centers, ―which are self-
directed career resource centers‖ that include library resources, computer
tutorials, and one-time Learning Activities, which explore topics such as
career possibilities with Disney.
298
As the name indicates, Summer Work Travel students come to the
United States to work. For SWE participants, this means working at the
Walt Disney World resorts for a minimum of thirty hours per week, but
more typically forty to forty-five hours per week, with longer hours during
peak and holiday seasons.
299
293. Jolly Holiday is a song from the Disney movie Mary Poppins. DICK VAN DYKE, Jolly
Holiday, on MARY POPPINS (Walt Disney Records 1964).
294. 22 C.F.R. § 62.32 (2010).
295. Id. § 62.32(a).
296. Collegiate Definition, OXFORD ENGLISH DICTIONARY, http://www.oed.com/view/Entry/36
309?rskey=z4TvON&result=1&isAdvanced=false# (last visited May 25, 2011).
297. Id.
298. Summer Work Experience: Education, DISNEY INT‘L PROGRAMS, https://www.disneyinter
nationalprograms.com/summer/education_intro.html (last visited Mar. 1, 2011).
299. Australia/New Zealand Work Experience: Pay Rates and Hours, DISNEY INT‘L PROGRAMS
(Nov. 20, 2010), https://www.disneyinternationalprograms.com/seasonal/experience_payrates.html;
see also E-Presentation: Disney College Program, supra note 273 (go to ―Chapter Menu,‖ then go
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a. Be Our Guest:
300
―Suitability‖ for the Summer Work
Experience
In contrast to its relationship with AEE participants, Disney is the visa
sponsor for SWE students. As such, Disney must ensure that its program is
―suitable to the exchange visitor‘s background, needs, and experience‖ and
that the visitor‘s English skills are sufficient to participate in the
program.
301
Additionally, per federal regulations, exchange visitors must
―receive pay and benefits commensurate with those offered to their
American counterparts.‖
302
The federal regulations do not expound on the statement that Summer
Work Travel should be ―suitable to the exchange visitor‘s background,
needs, and experience.‖
303
For example, there is no express requirement
that the summer work relate in any way to the visitor‘s major field of
academic study,
304
although this would be an easy proxy for ―background,
needs and experience.‖ As a result, students of all types—from Chinese
language
305
to Microbiology
306
majors—participate in Disney‘s Summer
Work Experience. These students, as already discussed, often hold
unskilled roles such as fast food dispensing or janitorial work.
307
b. Poor Unfortunate Souls:
308
Summer Work Travel as Neither
an Educational Nor a Cultural Exchange
Far more interesting is the fact that there is no educational component
to the Summer Work Travel generally and the SWE in particular. As
already discussed, the Fulbright–Hays Act authorizes ―educational
exchanges‖
309
for students as well as ―other exchanges‖ that promote
―studies, research, instruction, and other educational activities.‖
310
Clearly,
the Summer Work Travel regulations cannot relate to either category
because they are in no way ―educational.‖ They are simply work
programs.
311
to Chapter 7 at 1:39) (―[Disney] requires all . . . cast members to be fully available. This means
working nights, weekend, holidays, and overtime during certain peak seasons.‖).
300. Be Our Guest is a song from the Disney movie Beauty & the Beast. ANGELA LANSBURY,
Be Our Guest, on BEAUTY AND THE BEAST (Walt Disney Records 1991).
301. 22 C.F.R. §§ 62.10(a)(1), 62.32(b) (2010).
302. Id. § 62.32(e).
303. Id. §§ 62.10(a)(1), 62.32(b).
304. Contrast with 22 C.F.R. § 62.23(f)(3)(ii) (2010). See infra Part IV.B.2.b.
305. Xei Interview, supra note 281.
306. See Myself, LEOM‘S DISNEY ADVENTURE, http://leomgray.webs.com/myself.htm (last
visited Mar. 1, 2011).
307. See supra Part IV.B.1.c.
308. Poor Unfortunate Souls is a song from the Disney movie The Little Mermaid. PAT
CARROLL, Poor Unfortunate Souls, on THE LITTLE MERMAID (Walt Disney Records 1989).
309. 22 U.S.C. § 2452(a)(1) (2006).
310. Id. § 2452(b)(10).
311. Nor, it must be said, is the Summer Work Travel program the only non-academic program
set forth in the federal regulations. Camp Counselors are also exempt from academic requirements.
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One could argue that the Summer Work Travel regulations must,
therefore, relate to the ―cultural exchanges‖ authorized by the Act. Yet
those statutory provisions are extremely limited, open only to:
(i) visits and interchanges between the United States and other
countries of leaders, experts in fields of specialized
knowledge or skill, and other influential or distinguished
persons;
(ii) tours in countries abroad by creative and performing
artists and athletes from the United States, individually and in
groups, representing any field of the arts, sports, or any other
form of cultural attainment;
(iii) United States representation in international artistic,
dramatic, musical, sports, and other cultural festivals,
competitions, meetings, and like exhibitions and assemblies;
(iv) participation by groups and individuals from other
countries in nonprofit activities in the United States similar to
those described in subparagraphs (ii) and (iii) of this
paragraph, when the Director of the United States Information
Agency determines that such participation is in the national
interest.
312
Summer Work Travel students do not fall within any of the above
categories of cultural exchanges.
Because the Summer Work Travel regulations do not correspond to
either the educational or cultural exchange provisions of the Fulbright–
Hays Act, the statutory mandate for the J visa program, they are subject to
challenge. For although the Secretary of Homeland Security has been
authorized by Congress to establish regulations ―as he deems necessary for
carrying out his authority under the provisions of‖ the Immigration and
Nationality Act,
313
that authority is not limitless. The Supreme Court has
said, ―It is axiomatic that an administrative agency‘s power to promulgate
legislative regulations is limited to the authority delegated by Congress.‖
314
Any regulations adopted must be consistent with the underlying statute. In
the case of the Summer Work Travel program, these regulations are subject
to challenge under the Administrative Procedure Act, which authorizes
See 22 C.F.R. § 62.30 (2010). Au Pairs, in contrast, must complete not less than six semester hours
of academic credit or its equivalent during their year of program participation. Id. § 62.31(a).
312. 22 U.S.C. § 2452(a)(2) (2006).
313. 8 U.S.C. § 1103(a)(3) (2006); see also Chevron U.S.A. Inc. v. Natural Res. Def. Council,
467 U.S. 837, 843–44 (1984) (―If Congress has explicitly left a gap for the agency to fill, there is an
express delegation of authority to the agency to elucidate a specific provision of the statute by
regulation.‖).
314. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
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litigation to set aside agency regulations if they are ―in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right.‖
315
3. Supercalifragilisticexpialidocious:
316
The Australia/New
Zealand Work Experience
The third experience available through the Disney International College
Program is the Australia/New Zealand Work Experience. The program is
very similar to the SWE in all but its length. However, its statutory
background is a little more interesting.
The Fulbright–Hays Act authorizes the President to ―enter into
agreements with foreign governments and international organizations, in
furtherance of the purposes of this Act.‖
317
Pursuant to that authority, the
United States entered into separate memorandums of understanding with
New Zealand and Australia in September 2007 that initiated a twelve-
month student work and travel pilot program.
318
The actual agreements
have not been made public, but the requirements for the programs are set
out on United States Embassy Web sites
319
and in the United States
Department of State Foreign Affairs Manual.
320
Disney‘s Australia/New
Zealand Work Experience is one of fourteen programs in the United States
that have been initially approved as sponsoring organizations for these
programs.
321
The Australia and New Zealand programs track the Summer Work
Travel regulations in all respects except for duration of the program. They
are one-shot opportunities for New Zealand and Australian citizens who
are post-secondary students or recent graduates to work in the United
States for twelve months.
322
It is understood that participants will likely
perform in unskilled service positions, though they are expected not to
315. 5 U.S.C. § 706(2)(C) (2006).
316. Supercalifragilisticexpialidocious is a song from the Disney movie Mary Poppins. JULIE
ANDREWS, Supercalifragilisticexpialidocious, on MARY POPPINS (Walt Disney Records 1964).
317. H.R. REP. NO. 87-1197, at 3 (1961) (Conf. Rep.). This has been codified as 22 U.S.C.
§ 2453(a) (2006) (―The Director of the United States Information Agency is authorized to enter into
agreements with foreign governments and international organizations, in furtherance of the
purposes of this chapter.‖).
318. New Zealand and Australia Twelve-Month Student Work and Travel Pilot Programs,
U.S. DIPLOMATIC MISSION TO N.Z., http://newzealand.usembassy.gov/swt_faq.html (last visited Feb.
7, 2011); see also Student Work and Travel Pilot Program: Frequently Asked Questions, EMBASSY
OF THE UNITED STATES: CANBERRA, AUSTL., http://canberra.usembassy.gov/student_work_travel_
pilot_prog.html (last visited Mar. 1, 2011).
319. New Zealand and Australia Twelve-Month Student Work and Travel Pilot Programs,
supra note 318; see also Student Work and Travel Pilot Program: Frequently Asked Questions,
supra note 318.
320. See U.S. DEP‘T OF STATE, 9 FOREIGN AFF. MANUAL 41.62 N4.12-4 (2009), available at
http://www.state.gov/documents/organization/87379.pdf.
321. Student Work and Travel Pilot Program: Frequently Asked Questions, supra note 318.
322. New Zealand and Australia Twelve-Month Student Work and Travel Pilot Programs,
supra note 318; see also Student Work and Travel Pilot Program: Frequently Asked Questions,
supra note 318.
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―displace American workers.‖
323
As discussed, Summer Work Travel does not include any requirements
regarding academic coursework. Disney nonetheless informs potential
participants in the Australia/New Zealand Work Experience about
Disney‘s on-site collegiate level courses,
324
―professional development‖
studies specific to certain students with focused backgrounds in finance,
theater production, and engineering,
325
the ―exploration‖ series focused on
the operations of Walt Disney Resort,
326
and additional learning and
networking activities ranging from one-time presentations to multisession
programs.
327
Despite such advertisement, it is not easy for these
international students to participate in the collegiate or professional
development studies. The courses have limited enrollment and are reserved
for U.S. students and those international students participating in the
Academic Exchange Experience.
328
Other international students must
petition to be allowed to participate in these programs and are only allowed
in on a space-available basis.
Regardless of what educational opportunities might be available to
Australia/New Zealand Work Experience students, the bigger concern is
that the program rests on the Summer Work Travel regulations, which, as
previously discussed, are subject to challenge under the Administrative
Procedure Act as exceeding the authorization of the Fulbright–Hays Act.
The fact that the statute itself authorizes ―agreements with foreign
governments‖ does not change this analysis because such agreements must
be made ―in furtherance of the purposes of‖ the Act.
329
Given that Summer
Work Travel does not provide opportunities that are educational or cultural
within the meaning of the Act, the underlying agreements exceed their
statutory grounding.
330
323. Student Work and Travel Pilot Program: Frequently Asked Questions, supra note 318.
324. Some of these classes include Advanced Studies in Hospitality Management, Corporate
Analysis, Corporate Communication, Human Resource Management, Organizational Leadership,
Hospitality Brand Management, Theme Park Management, Food & Beverage Operations in the
Hospitality Industry, and Survey of Wines of the World. See Academic Exchange Experience:
Collegiate Course Information, supra note 240; Seminar Offerings for the Walt Disney World, Co.
International Academic Program, supra note 240.
325. Academic Exchange Experience: Professional Development Series Course Information,
DISNEY INT‘L PROGRAMS, https://www.disneyinternationalprograms.com/j1/education_pds.html (last
visited Mar. 1, 2011).
326. Academic Exchange Experience: Disney Exploration Series Course Information, DISNEY
INT‘L PROGRAMS, https://www.disneyinternationalprograms.com/j1/education_des.html (last visited
Mar. 1, 2011).
327. Academic Exchange Experience: Additional Learning Opportunities, DISNEY INT‘L
PROGRAMS, https://www.disneyinternationalprograms.com/j1/education_opportunities.html (last
visited Mar. 1, 2011).
328. Arledge Interview, supra note 26.
329. 22 U.S.C. § 2453(a) (2006).
330. 22 U.S.C. § 2452(a).
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4. Can You Feel the Love Tonight:
331
Cultural Exchange,
Acculturation, and Disney‘s J Visa Programs
Temporarily putting aside the issue of whether Disney or the federal
regulations underlying its programs are complying with the ―academic‖ or
―training‖ requirements of J visas, it is apparent that all three experiences
within the Disney International College Program promote cultural
cooperation and exchange.
332
Students in the Disney International College
Program do gain an understanding of the United States, its culture, and its
society by virtue of working for, rooming with, and dating Americans at
the theme parks.
333
At the same time, because all international students
have onstage roles, they interact with the American public.
334
Those
interactions help to eliminate the American guests‘ stereotypes and
inaccurate images of students‘ home countries and their citizens. Such
cultural exchange was indeed a principal goal of the Fulbright–Hays
Act.
335
Likewise, the visiting international students also fulfill the other,
historic goal of the J visa program: winning the hearts and minds of men
and women overseas. There will always be people dissatisfied with the
program,
336
but many participants and graduates leave the International
College Program enamored with Disney, corporate America, and the
United States itself.
337
While one could certainly argue that this particular
331. Can You Feel the Love Tonight is a song from the Disney movie The Lion King. ELTON
JOHN, Can You Feel the Love Tonight, on THE LION KING (Walt Disney 1994).
332. See supra Part III.C.
333. See, e.g., Hillinger, supra note 114 (relating stories of international cast members who
have roomed with and dated American cast members); Cindy Hval, Their Happily Ever After
Started at Disney World, SPOKESMAN-REV (Spokane, Wash.), Feb. 21, 2008, at 10S.
334. See Hillinger, supra note 114.
335. See 22 U.S.C. § 2451 (2006). Note that despite the title of ―cultural exchange,‖ the
concept behind the Q visa is not ―exchange‖ so much as ―one-way street.‖ Whether the beneficiary
of a Q visa gains insight into American culture and society is irrelevant to Q visa programs. The
sole focus of the Q visa is whether the American public is gaining cultural awareness from the visa
participant. Indeed, in the example of the temporary staffing company discussed earlier, supra Part
III.E, the Q program was rejected, in part, because it was ―primarily designed to offer foreign
hospitality students and professionals a chance to gain experience in the American hospitality
industry while furnishing the U.S. businesses with knowledgeable or experienced workers.‖ Rosen
Letter, supra note 187, at 2.
336. See, e.g., Verrier, supra note 26 (discussing dissatisfaction with Q visa program);
FutureCEO, Disappointed by Disney, WDWMAGIC.COM (Nov. 27, 2002, 12:07 AM),
http://forums.wdwmagic.com/showthread.php?t=17028 (discussing general college program).
337. See, e.g., Riley Interview, supra note 274 (―I absolutely love the program. I can clearly
say that it was the best decision of my life. . . . The friends I have made here are amazing and this
program has made me realise even more than before that I want to move to the USA and try to find
myself travel/tourism Marketing employment. . . . I wouldn‘t trade my experience here for the
world!‖); Ben Hultum, The End of a Wonderful Journey . . ., ONE MAN AND HIS BROOM: THE BLOG
OF A SHOWKEEPER (Oct. 6, 2006, 1:10 AM), http://bensdisneyexperience.blogspot.com/ (―Working
at Disney-MGM Studios was amazing . . . . For anybody reading this who is considering the
College Program/International College Program, I urge you to participate. I‘m sure that no matter
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goal underlying the J visa is as outdated as the Cold War, it is also arguable
that this goal is even more important today given current political, public
relations, and even terrorist attacks on the United States from abroad.
Of course, these concerns ignore the elephant in the room: money.
C. Feed the Birds:
338
Money and the Disney International College
Program
Disney‘s International College Program has many of the same financial
benefits for Disney as the Disney Cultural Representative Program.
339
International students are exempt from FICA taxes;
340
they live in Disney‘s
on-site housing;
341
and their ability to remain in the United States is tied to
the terms of their visa, making them more dependable employees.
342
And the international college program reaps even more financial
benefits. Although international students earn the same as their American
counterparts in the Disney College Program, they earn less than Disney‘s
nonstudent labor, including cultural representatives.
343
This is because the
students are not covered by the collective bargaining agreement that
governs the majority of the resort‘s workforce.
344
As a result, Disney
secures wage savings upward of $15 million a year.
345
This savings reflects
wages only. Disney saves even more by not paying into pension plans or
providing healthcare benefits to these students.
346
D. The Mickey Mouse March:
347
Straying from Statute
Many of the J visa beneficiaries who participate in Disney‘s
International College Program satisfy federal requirements. Students who
are placed in front desk or concierge positions at resort hotels, have an
what job you decide on[,] you will have a brilliant time but obviously, I very highly recommend
Custodial! Even when the hours get tough, everybody gets along and there is an incredible amount
of fun to be had each day. The pride and satisfaction of completing all of the challenges the program
entails is truly priceless.‖); Chris Saribay, “The Big Blue World,” DISNEY EDITION (Mar. 16, 2008,
12:00 AM), http://chrissaribay.com/disney-blog/ (―[W]here else can you have such a rewarding
experience and opportunity for personal growth?‖); DisneyTimitu, I LOVE Work (All About
Working in Disney the Last Few Weeks), A YEAR TO REMEMBER (Dec. 26, 2008, 7:42 AM),
http://disneytimitu.livejournal.com/11879.html (―I LOVE work.‖).
338. Feed the Birds is a song from the Disney movie Mary Poppins. JULIE ANDREWS, Feed the
Birds, on MARY POPPINS (Walt Disney Records 1964).
339. See supra Part III.D.
340. I.R.C. § 3121(b)(19) (2006).
341. Academic Exchange Experience: Living, DISNEY INT‘L PROGRAMS,
https://www.disneyinternationalprograms.com/j1/living_intro.html (last visited Mar. 1, 2011).
342. See Cultural Representative Program: FAQs, supra note 146 (―This visa authorizes
employment for your specific company ONLY.‖).
343. Hillinger, supra note 114; Jerkovich Interview, supra note 130.
344. Jerkovich Interview, supra note 130.
345. See supra notes 135–40 and accompanying text.
346. Schneider, supra note 140.
347. The Mickey Mouse March was the opening song for the Mickey Mouse Club television
program.
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underlying hospitality degree, and participate in the Disney collegiate
courses are likely to meet both the letter and the spirit of the J visa
regulations.
But Disney does not limit its J visa beneficiaries to such clearly
compliant positions. Its international students who hawk trinkets, serve fast
food, and clean up after guests are performing unskilled labor that is
neither academic nor cultural, as understood by the Fulbright–Hays Act.
They are also occupying positions that American workers are ready,
willing, and able to fill.
348
The Disney International College Program cannot be described as ―fair,
reflective of our values,‖ or even as a program that ―works‖ under the
law.
349
The fact that the program continues to operate as it has for more
than twenty-five years speaks volumes about how current immigration
laws are enforced. It illustrates how companies with advocates can
manipulate existing laws to reap financial gain without any consequences
and how even regulators can wander away from statutory grounding.
V. CONCLUSION: ENCHANTED
350
President Obama has called comprehensive immigration reform one of
the ―great challenges of our times,‖ noting that ―the politics of who is and
who is not allowed to enter this country, and on what terms, has always
been contentious.‖
351
―Our task then,‖ he has said, ―is to make our national
laws actually work.‖
352
If the President‘s call for reform is heeded, Congress will be looking
both to write new laws and to reform those laws already on the books. To
make national laws that ―actually work,‖ Congress must be willing to resist
those who are looking to tailor such laws to their particular needs.
Indeed, the use of Q and J visas to help field the labor force at Walt
Disney World shows how malleable the visa system is in the hands of a
few powerful players. And Q and J visas evidence different malleabilities
of our immigration law system. The Q visa shows the legislative
malleability of the law—one individual persuaded Congress to enact new
legislation in order to benefit a single company to the tune of millions of
dollars per year. The J visa shows the malleability of the law in practice,
taking great liberties with ideas of learning and education in a program
designed to bring students into the United States from overseas. Disney has
thereby found itself in the good graces of a federal immigration and visa
system that is better known for its sometimes cruel inflexibility. The
348. Jerkovich Interview, supra note 130.
349. Obama, supra note 12.
350. Enchanted was a mixed live-action/animated feature film by Disney. ENCHANTED (Walt
Disney Pictures 2007).
351. Obama, supra note 12.
352. Id.; see also Kori Schulman, President Obama on the DREAM Act: “My Administration
Will Not Give Up,” White House Blog (Dec. 18, 2010, 12:53 PM), http://www.whitehouse.gov/bl
og/2010/12/18/president-obama-dream-act-my-administration-will-not-give (―[M]y administration
will not give up on . . . the important business of fixing our broken immigration system.‖).
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immigration laws on the books and the throngs of tourists wearing Mickey
Mouse ears in Florida have one thing in common—they are both inevitably
susceptible to the magic of Disney.
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