Representing Absentee Migrant Workers in U.S. Courts (Global Workers Justice Alliance, 2008)

Challenges in
Transnational Litigation:
Representing Absentee Migrant

Workers in U.S. Courts
113 University Pl, 8th Fl, New York, New York, 10003 United States
917-238-0979 www.globalworkers.org info@globalworkers.org
Produced Nov., 2008

This manual is dedicated to farmworker advocates who have always gone the extra mile to
ensure that their transnational migrant clients, no matter where they go, get their day in court.
Acknowledgements
There are many people to thank for making this Manual possible. Several people deserve special
attention for their unique contributions. A special thank you goes out to Elisa Catera, Rebecca
Heller, Kyle Smith, and Melissa Brennan; legal interns who provided critical research and
analysis. Rebecca Smith, Greg Schell, and the Centro de Derechos de los Migrantes deserve
credit for their insightful editorial comments. Finally a thank you to the staff at Global Workers,
Cathleen Caron, Kate D’Adamo, and Griselda Vega, for the countless hours required to make the
Manual a reality.
This Manual was printed with the support of the Southern Poverty Law Center.

Table of Contents
INTRODUCTION ............................................................................................................................................. 1
I. Discovery .................................................................................................................................................... 3
A. Depositions .......................................................................................................................................... 3
1. Appearing in the United States for Depositions ................................................................................ 3
2. Mechanisms to Bring Clients into the Unites States for Legal Proceedings ...................................... 4
a. Tourist Visas ................................................................................................................... 4
b. Parole.............................................................................................................................. 6
3. Conducting Depositions Abroad ...................................................................................................... 10
a. Moving for Protective Orders ...................................................................................... 10
b. Paying Expenses Related to Depositions Outside of the United States ........................ 15
c. Procedural Challenges.................................................................................................. 16
II. Trial ......................................................................................................................................................... 23
A. Returning for Trial ............................................................................................................................... 23
B. Admitting Depositions in Lieu of Live Testimony ................................................................................ 23
III. Using U.S. Courts to Address Violations of U.S. Law to Foreign Clients on Foreign Soil ........................ 25
A. Extraterritorial Applications of U.S. Law ............................................................................................. 25
1. Background ..................................................................................................................................... 25
2. Extraterritorial Application of Federal Laws ................................................................................... 25
3. Qualified for Employment ............................................................................................................... 26
4. Contacts with the United States May Render Extraterritorial Application Argument Unnecessary
............................................................................................................................................................ 27
IV. CONCLUSION.......................................................................................................................................... 29
Appendix A: Programs ................................................................................................................................ 31
Appendix B: How Global Workers Can Assist you with your Overseas Low‐Wage Clients ......................... 33

INTRODUCTION
Every two years, farmworker advocates from across the nation come together to discuss
strategies and challenges to representing their ever-mobile farmworker clients. Over the years,
the profile of the American farmworker has changed from one born in the United States to one
born overseas, mostly Mexico. Today, the majority of farmworkers labor without proper
authorization (a.k.a. “undocumented”), and increasingly they come temporarily, through the H-
2A guestworker program. The changing demographics have also meant a change in strategy for
farmworker advocates. No longer do the chronically exploited clients remain in the United
States, but many leave to return to their home countries. Their absence, whether temporary or
permanent, due to an injury, deportation, or just plain homesickness, presents unique and new
challenges. Farmworkers will continue to enter the United States from an increasingly diverse
list of foreign countries. One of the great challenges of the 21st century farmworker advocate is
how to ensure that these workers, no matter where they go, can have their day in court for abuses
suffered while working in the United States.
After presenting at the National Farmworker Law Conference in 2006 on the challenges
of transnational litigation, Global Workers Justice Alliance (Global Workers) endeavored to draft
a manual that would be of use to all advocates who litigate on behalf of today’s exploited and
mobile immigrant workforce. The fact is that immigrant workers dominate the low-wage
employment sector in the United States today. As a consequence, an increasingly wider circle of
advocates now struggle to represent their often absent clients.
The mission of Global Workers is to combat worker exploitation by promoting portable

justice for transnational migrants through a cross-border network of worker advocates and
resources. Global Workers believes that portable justice, the right and ability of transnational
migrants to access justice in the host country even after they have departed, is key to achieving
justice for today’s global migrants. Global Workers message to advocates is simple—“don’t give
up on your clients who leave the United States.” Global Workers was founded in 2005 to
empower U.S. advocates to handle the unique challenges of representing clients who have left
the United States.
This Manual attempts to outline the challenges involved, and suggest ways that they can
be addressed. This will be a living document. Global Workers encourages practitioners to
provide us with tips they have learned on the way and suggest additional areas that should be
explored. The Manual will be updated every few years to reflect that input.
Challenges in Transnational Litigation: Page 1
Representing Absentee Migrant Workers in U.S. Courts
Challenges in Transnational Litigation:
Representing Absentee Migrant Workers in
U.S. Courts
I. Discovery
Civil discovery is the first phase in litigation where special challenges will present themselves if
your client is no longer located in the United States.
A. Depositions
1. Appearing in the United States for Depositions
Because the plaintiff often chooses the forum, she will more likely be required to attend
her deposition in the forum district. “[O]rdinarily, a defendant is entitled to examine a plaintiff in
the forum where plaintiff has chosen to sue.”1 A defendant, on the other hand, does not choose
the forum and, therefore, the Court is more likely to protect him from a deposition set in the
forum district. A deposition of a corporation through its agents or officers should normally be
taken at the principal place of business of the corporation.2
However, "if special circumstances are shown, such as hardship or burden to the plaintiff,
which outweigh any prejudice to the defendant, the general rule may yield to the exigencies of
the particular case. The matter rests at the discretion of the court . . . "3 In these circumstances,
you may apply to the court for a protective order allowing your client to be deposed in her home
country.4 But in certain circumstances, your client may need to appear in person.
The court may also choose to compel your client to return. The Federal Rules of Civil
Procedure grant federal courts the discretion to determine the location of a deposition.5 The
court’s reasoning may vary, and may be challenged with a protective order, but it is within the
jurisdiction of the court to require in-person testimony.
In some jurisdictions, local rules require that a non-resident plaintiff provide in-person
testimony. For example, the Indiana Rules of Trial Procedure stipulate that, “A non-resident
1
Seuthe v. Renewal Products, Inc., 38 F.R.D. 323, 324 (S.D.N.Y. 1965); See also Clem v. Allied Van Lines Int'l
Corp., 102 F.R.D. 938, 939 (S.D.N.Y. 1984); Institutio Per Lo Sviluppo Economico Dell' Italia Meridionale v.
Sperti Prod., Inc., 47 F.R.D. 530, 533 (S.D.N.Y. 1969); Haviland & Co. v. Montgomery Ward & Co., 31 F.R.D.
578, 580 (S.D.N.Y. 1962).
2
Turner v. Prudential Ins. Co. of America, 119 F.R.D. 38 (M.D.N.C. 1988)(citing 8 C. Wright & A. Miller, Federal
Practice and Procedure, § 2112 at 409-10 (1970)).
3
Seuthe, 38 F.R.D. at 324.
4
See infra I(A)(3)(a) Moving for Protective Orders
5
Fed. R. Civ. P. 26(c)(2). See also Gen. Leasing Co. v. Lawrence Photo-Graphic Supply, Inc., 84 F.R.D. 130 (W.D.
Mo. 1979).
plaintiff may be required to attend at his own expense an examination in the county of this state
where the action is commenced or in a county fixed by the court.”6 The Middle District of
Florida Local Rules states that it is the “general policy” of the court that a non-resident plaintiff,
or a plaintiff living outside the state of Florida, can reasonably expect to be deposed at least once
within the District.7 The Northern District of Florida Local Rules similarly read, “[I]t is the
policy in this district that the deposition of a non-resident plaintiff may be taken at least once in
this district.”8
Despite the rule, the Northern District of Florida has overturned a magistrate judge’s
ruling that required in-person depositions when a Mexican plaintiff was unable to obtain a visa to
travel to Atlanta.9 But the U.S. District Court for the Middle District of Florida chose to uphold
the rules in Brown v. Bray.10 In this case, the plaintiff moved for a protective order to allow her
to testify from her home in Indiana because she suffered from dementia and severe asthma. The
court denied her protective order, ruling, “Other than making general statements that submitting
to a deposition would ‘result in undue burden and expense on her personal health and well being
[sic],’ Plaintiff failed to demonstrated that she cannot travel to Florida and cannot submit to a
full-length deposition for a case that she initiated.”11
It is important to note that both the phrasing in Brown and the rules for the Middle and
Northern Districts of Florida imply room for leniency. The rules state only that requiring in-
person testimony is a “general policy,” not an exclusive mechanism for deposing plaintiffs. In
Brown, the Court’s reasoning implies that if Plaintiff had submitted more specifics, and a more a
detailed doctor’s note, it would have considered her protective order.
2. Mechanisms to Bring Clients into the Unites States for Legal Proceedings
If the client needs, or prefers, to return to the United States to give her deposition, there
are several avenues you can pursue to bring her back. Circumstances may vary depending on the
country of origin, immigration bars that may apply to the client, and availability of funding for
travel. The simplest way to bring a client into the United States is through a tourist visa, but
migrant workers will often have a difficult time obtaining tourist visas due to reasons described
below. If your client’s visa is denied, you can apply for the client to be temporarily paroled into
the country for purposes of participating in the litigation. While there are no explicit bars on
applying for parole, it is difficult to receive parole; therefore it is unlikely that your client will be
granted parole more than once.
a. Tourist Visas
Tourist visas are the most common way for transnational worker advocates to bring their
clients to the United States. During a recent conversation with U.S. consular officials in Mexico
6
Indiana Rules of Trial Procedure 45(D)(2).
7
Middle District of Florida Local Rules 3.04(b).
8
Northern District of Florida Local Rules 26.2(2)(2).
9
Javier Lizarraga-Ruiz v. Georgia-Pacific Corp., Court Order No. 4:00cv37/RV/SMN, at *2 (N. Dist. of Fl. Nov. 8,
2001)(on file with author).
10
Brown v. Bray & Gillespie III Mgmt. LLC., 2007 U.S. Dist. LEXIS 3223 at *3 (Jan. 17, 2007).
11
Id. at 3.
City, they stated that they routinely grant tourist visas—as long as no admissibility bars apply—
when an Attorney Generals’ office provides the visa applicant with a letter stating that they are
returning to testify in a judicial proceeding.12 For non-profit agencies, the consular officials
recommended the letter be accompanied by a judicial order to legitimize the request.13
Additional steps may also prove useful in securing a tourist visa for the client. For
example, one can contact the consulate ahead of time to discuss the importance of the lawsuit
and why the client’s testimony is critical. If the client is a guestworker, one should certainly
raise the issue of fairness emphasizing that the client obeyed the visa restrictions by returning to
her home country. Other possibilities include sending someone to accompany the client to the
visa interview to underscore the importance of returning to the United States.
i.) Application
Acquiring a tourist visa can be problematic because issuance is discretionary. Under the
United States Immigration and Nationality Act (INA), applications will be read with the
presumption that any visa applicant intends to eventually immigrate to the United States. The
applicant must disprove this presumption by showing that s/he:
1.) Has a well-established residence outside of the United States;
2.) Has a realistic, logical reason to visit the United States;
3.) Plans to stay in the United States for a specific, limited time; and
4.) Have sufficient resources of his/her own to cover the cost of the trip, regardless of
whether a relative or friend wants to help pay for travel.14
Remember that these are only guidelines. The decision to issue the visa is discretionary,
and the lack of one requirement, for example a lack of assets, is not be an absolute bar. For more
information on applying for a tourist visa, see Destination USA: Applying for a Tourist Visa,
www.unitedstatesvisas.gov/visiting2.html.
ii.) Admissibility Bars
If the client has previously been subject to deportation (also called “removal”), there is a
10-year bar to any kind of re-entry.15 Specifically, if the client has been removed, s/he is
ineligible to receive a visa for the 10-year period following her departure.16 If your client has
been removed two or more times, there is a 20-year bar to re-entry, beginning from the most
12
Interview by Cathleen Caron with U.S. Consular Officials, U.S. Consulate in Mexico City, MX (Sept. 25, 2008).
13
Id.
14
Immigration and Nationality Act (INA) § 214(b), 8 U.S.C.S. § 1184(b) (2004).
15
22 C.F.R. § 40.91(b).
16
INA § 212 (a)(9)(A)(ii).
recent date of removal.17 If your client has been convicted of an aggravated felony, there is a
permanent bar to reentry.18
The Department of Homeland Security has the discretion to make exceptions, and grant a
visa application in spite of a bar, but this happens only in very rare situations.19 If deemed
inadmissible by the consular official, the visa applicant will have to submit additional forms to
the consular official, which will be sent to the Department of Homeland Security for review. An
alien who is inadmissible because he has been removed or has voluntarily departed following an
order of removal should file Form I-212, Application for Permission to Reapply for Admission
Into the United States After Deportation or Removal20 and I-192, Application for Advance
Permission to Enter as a Nonimmigrant21 to seek a discretionary grant of entry. An alien who is
otherwise inadmissible need only file form I-192.22 The decision to refuse or grant the
application to waive inadmissibility will be based on three factors: (1) the risk of harm to society
if your client is admitted; (2) the seriousness of your client’s immigration or criminal law
violation; and (3) the nature of your client’s reasons for wishing to enter the United States.23
While the possibility of obtaining a waiver is limited, it is an available option for advocates to
consider.
b. Parole
Parole is the temporary admission of an alien into the United States for humanitarian
purposes or public benefit. It is temporary and can be revoked at any time. The relevant law is
found in 8 U.S.C.S. § 1182(d)(5)(A), allowing the Attorney General, in his discretion, to:
[P]arole into the United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to the United States,
but such parole of such alien shall not be regarded as an admission of the alien
and when the purposes of such parole shall, in the opinion of the Attorney
General, have been served the alien shall forthwith return or be returned to the
custody from which he was paroled and thereafter his case shall continue to be
dealt with in the same manner as that of any other applicant for admission to the
United States.24
17
22 C.F.R. § 40.91(c).
18
22 C.F.R. § 40.91(d).
19
22 C.F.R. § 40.91(e).
20
8 C.F.R. § 1182 (g), (h), (i). See also Form I-212, Application for Permission to Reapply for Admission into the
United States After Deportation or Removal, Special Instructions, available at
http://www.uscis.gov/portal/site/uscis.
21
8 C.F.R. § 212.4(b).
22
8 C.F.R. § 212.4(b). There are special instructions for the I-192 Application for Advance Permission to Enter as
Nonimmigrant Department of Homeland Security, as well as, an inadmissibility list in 8 U.S.C.A. § 1182 (a), such
as inadmissablity due to membership or affiliation with any Communist or other totalitarian party or organization, or
inadmissiblity due to disease, mental or physical defect.
23
Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1978).
24
With the reorganization of immigration enforcement, the authorization to grant parole has been shifted to the
Secretary of the Department of Homeland Security or his designees. 8 C.F.R. § 212.5(a).
Because there is no definitive legal definition of parole, different types of parole
frequently become interchanged during the application process.25
i.) Types of Parole
“Parole of Aliens into the United States,” 8 C.F.R. § 212.5, lists various categories of
aliens who benefit from parole for “urgent humanitarian reasons” or “significant public benefit.”
The authority for granting parole to persons outside of the United Sates is found in subsection
(c).26
Some advocates have had success applying for “humanitarian parole” or “humanitarian
visas,” as they are sometimes called, to have their clients come to the United States to be
deposed or to testify at trial. Although “humanitarian parole” or “humanitarian visa” is not
legally defined, it is a term commonly used in the consulates and seems to apply generally to
anyone paroled into the United States through the general authority under the INA § 212
(d)(5)(A) (which mirrors the definition of § 1182(d)(5)(A) quoted above) and as further detailed
under 8 C.F.R. § 212.5. All of these sources refer to “urgent humanitarian reasons” or
“significant public benefit” as the general, yet discretionary, reason to grant parole.
One parole category for detained aliens is for those who “will be witnesses in
proceedings, or to be, conducted by judicial, administrative, or legislative bodies.”27 This basis
for parole could be useful for advocates of transnational workers.28 Parole for returning
witnesses, although the regulation itself was not cited, was first discussed in United States v.
Filippi, where it was labeled “public interest parole.”29 In Filippi, the defendant was appealing a
conviction for trafficking cocaine from Ecuador to Puerto Rico. Defendant claimed that his Due
Process rights had been violated because the U.S. government refused to request public interest
parole for the only material defense witness, who lived in Ecuador. The First Circuit ruled that
the failure to request public interest parole for this witness was a violation of Due Process, and
the government had a duty to send the appropriate request to the INS.30 Although the opinion
does not reference the legal source of “public interest parole,” Filippi is useful to reinforce the
proposition that entering the United States to testify at trial is an appropriate use of the
Department of Homeland Security’s parole authority.31
25
Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure, Matthew Bender
and Company, Inc., 2008, at § 62.01. See also Matter of O., 16 I. & N. Dec. 344 (1977).
26
8 C.F.R. § 212.5(c).
27
8 C.F.R. § 212.5(b)(4).
28
Section 212.5 makes provision for paroling two major categories of aliens, those “who have been or are detained”
and “all other arriving aliens.” See subsection (b) and (c) respectively. Although the specific provision setting out
parole for witnesses in legal proceedings is listed in subsection (b)(4), the language of subsection (c), which states
that officials granting parole may do so “under such terms and conditions . . . as he or she may deem appropriate”
suggests that the reasons delineated under subsection (b) could be a basis for paroling “all other arriving aliens” as
well.
29
United States v. Theresius Filippi, 918 F.2d 244, 246 (1st Cir. 1990).
30
Filippi, 918 F.2d at 248.
31
Many U.S. consular officials are familiar with “humanitarian parole” but have never even heard of the term
“public interest parole.” Interview by Cathleen Caron with U.S. Consular Officials, U.S. Consulate in Mexico City,
MX (Sept. 25, 2008.)
ii.) Application Process
There are three ways of obtaining parole for an overseas client. The parolee can self-
petition or a third party, such as a lawyer, may apply on her behalf. Foreign consulates can also
petition for their nationals, but it is unclear if the same administrative procedures described
below apply.
An application for parole must include the application fee, Form I-131, Application for
Travel Document, photographs (if you are applying from abroad, do not submit photographs
with your application—the U.S. Embassy or Consulate or Department of Homeland Security
Office abroad will ask for them), and a copy of an official photo identity document with your
client’s name, photograph and date of birth, such as a government-issued driver’s license or the
identity page of a passport.
Additionally, if your client is outside the United States, s/he will need to provide:
1.) A statement of who will provide medical care, transportation, housing,

and other expenses and subsistence needs;
2.) Form I-134, Affidavit of Support, with evidence of the sponsor’s
ability to provide necessary support;
3.) A statement of why a U.S. visa cannot be obtained, including when
and where attempts were made to obtain a visa;
4.) A statement of why a waiver of inadmissibility cannot be obtained to
allow issuance of a visa, including when and where attempts were
made to obtain a waiver, and a copy of any USCIS or former INS
decision on your waiver request;
5.) A copy of any decision on an immigration petition filed for the
applicant, and evidence regarding any pending immigration petition;
6.) A complete description of the emergent reasons explaining why parole
should be authorized and including copies of any evidence you wish to
be considered, and indicating the length of time for which the parole is
requested; and
7.) A cover letter, if not applying with another Form.
For more information, to download all forms and look at sample cover letters, see
www.immihelp.com/greencard/adjustmentofstatus/advance-parole.html.
iii.) Lawyers Sponsoring Clients for Parole Purposes
Form 1-134, the Affidavit of Support, can present a professional dilemma. Most clients
cannot pay their own expenses and most rely on the advocates to pay their expenses to travel to
and remain in the United States temporarily. The Affidavit of Support, however, goes even
further. As a sponsor, it requires you to prove that you have sufficient resources to ensure that
the parolee does not become a public charge while in the United States and be willing to provide
a bond as a guarantee.32
One advocate argued to the government that sponsorship, among other things, could be a
violation of the Professional Rules of Conduct and requested the parole petition to be processed
without the Affidavit of Support. 33 Rule 1.8(e) of the Model Rules of Professional Conduct
states:
A lawyer shall not provide financial assistance to a client in connection with
pending or contemplated litigation, except that: (1) a lawyer may advance court
costs and expenses of litigation, the repayment of which may be contingent on
the outcome of the matter; and (2) a lawyer representing an indigent client may
pay court costs and expenses of litigation on behalf of the client.34
Nearly every state’s rules of professional conduct contain a provision similar to Model Rule
1.8(e), allowing lawyers to either advance costs associated with litigation or pay such costs for
indigent clients.35 Although some states go further in allowing attorneys to provide for costs not
specifically related to litigation,36 a brief survey of state courts indicates that most prohibit the
advancement of living costs to clients. For example, a New York court stated that although an
attorney may advance the court costs and the costs of medical examinations, he cannot provide
other forms of financial assistance to a client such as living expenses, and censured the attorneys
who had aided clients in meeting personal financial obligations.37
32
The application also requires information on one’s bank accounts, salary, value of personal property, stocks and
bonds, life insurance, real estate, and one’s dependents. United States Citizen Immigration Services, Affidavit of
Support, Form I-134, www.uscis.gov/files/form/i-134.pdf.
33
Letter from Mike Holley, Attorney, Southern Migrant Legal Services, to U.S. INS Parole and Humanitarian
Assistance Branch (Dec. 6, 2002)(on file with author). The humanitarian visa in that case was ultimately issued
without the Affidavit of Support, although the government did not affirmatively address that point when doing so.
34
Model Rules of Professional Conduct Rule 1.8(e).
35
The only states that do not explicitly provide for attorneys to pay costs without expectation of reimbursement for
indigent clients are California, Oregon and Washington. See California Rules of Professional Conduct [hereinafter
California Rules], available at http://calbar.ca.gov/calbar/pdfs/rules/Rules_Professional-Conduct.pdf; Oregon Rules
of Professional Conduct [hereinafter Oregon Rules], available at http://www.osbar.org/_docs/rulesregs/
orpc.pdf; Washington State Court Rules: Rules of Professional Conduct [hereinafter Washington Rules], available
at http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC. However, California allows for
repayment to be contingent upon outcome, and Oregon limits client liability to the extent of his/her ability to pay.
California Rules, § 4-210(A)(3); Oregon Rules, § 1.8(e). Washington, on the other hand, only allows for payment
contingent on outcome when there is a class action suit. Washington Rules, § 1.8(e)(2).
36
For example, Texas also allows for advancing the costs of “reasonably necessary medical and living expenses.”
Alabama allows lawyers to provide “emergency financial assistance” to clients although repayment cannot be
contingent on the outcome of the case. Texas Disciplinary Rules of Professional Conduct Rule 1.08(d)(1), available
at http://www.texasbar.com/ContentManagement/ContentDisplay.cfm?ContentID=13942. California provides that
attorneys may not only advance costs for prosecuting or defending a claim but also to “otherwise protect[ ] or
promote[ ] client's interests.” California Rules, supra note 35, § Rule 4-210(A)(3). Minnesota allows attorneys,
under certain circumstances to loan money to clients. Minnesota Rules of Professional Conduct, § 1.8(e)(3),
available at http://www.mncourts.gov/lprb/05mrpc.html#r18.
37
Matter of Arensberg, 553 N.Y.S.2d 859, 860 (3rd Dept 1990). See also Matter of Resseguie, 526 N.Y.S.2d 863,
865 (3rd Dept. 1988), in which the court suspended an attorney for six months who, among other violations, had
violated D.R. 5-103(B) by making a loan to a client of $550 for living expenses.
iv.) Common Reason for Denial
Although multiple reasons can result in a denial of parole, a common reason for rejected
applications was that the applicant had not exhausted other avenues of immigration prior to
applying for parole.38 Petitions for parole often take months to resolve—if you do not have time
to wait for the application for parole to be granted, you should ask the court for a protective
order. Attempts to gain admission through parole will strengthen your case for a protective order
by illustrating that you have made every attempt possible to get your client into the country. If
one does not have the time to apply for a tourist visa before applying for parole, one should at
least state why a tourist visa would be unattainable due to, for example, lack of assets or
admissibility bars.39
v.) Obtaining Assistance from Consular Officials
Foreign consular officials may also request parole on behalf of a transnational worker.
Although this is typically used for medical reasons, the most common use of a “humanitarian
visa,” several consular officials have indicated a willingness to seek these visas for workers to
return to the United States to testify.40 There are no statistics available on whether consulates
may be more successful in seeking parole than individual applicants, but it is worth checking
with the local consulate to see what assistance might be available.
3. Conducting Depositions Abroad
If the client cannot travel to the United States to be deposed, several alternatives are
possible. All parties can travel to the client (plaintiffs’ attorneys, defendants’ attorneys, court
reporter, and translator) or some of the parties can travel while others participate by remote
means (video or telephonic). The easiest way to establish this process is through mutual
agreement with the defendant. If both parties can agree to a procedure for obtaining depositions
outside of the United States, they can avoid the need for a protracted battle over discovery.
If the defendant is unwilling to agree, the plaintiff may apply for a protective order
petitioning to be deposed in her home country. Once the protective order is received, the court,
under Federal Rule of Civil Procedure 27(a)(3), will prescribe the process by which the
deposition shall take place.
a. Moving for Protective Orders
If the plaintiff is not able to come to the United States to be deposed in person, you may
have to apply for a protective order to allow her to be deposed outside of the United States under
38
U.S. Gov’t Accountability Office, Report to Congressional Requesters GAO-08-282, Immigration Benefits:
Internal Controls for Adjudicating Humanitarian Parole Cases are Generally Effective but Some Can Be
Strengthened (2008), available at http://www.gao.gov/new.items/d08282.pdf.
39
See infra I(A)(3)(a) Moving for Protective Orders for how to incorporate these obstacles into motions to hold
depositions in an alternative form and/or outside the United States.
40
Interview by Cathleen Caron with U.S. Consular Officials, Mexican Consulate in New York City and Guatemalan
Consulate in New York City (2007).
Rule 26(c) of the Federal Rules of Civil Procedure.41 A party may obtain a protective order upon
a showing of good cause, demonstrating undue burden or hardship.42 "[I]f special circumstances
are shown, such as hardship or burden to the plaintiff, which outweigh any prejudice to the
defendant, the general rule may yield to the exigencies of the particular case. The matter rests in
the discretion of the court."43
There is no one test to satisfy when moving for a protective order. However, successful
motions typically establish three things:
1.) Plaintiff had no choice but to bring the suit in the United States;
2.) Plaintiff will suffer either undue burden or hardship to testify in
person;
3.) Satisfactory alternatives are available.
Advocates have tended to use one or all three of the above arguments to successfully move for a
protective order.
i.) Plaintiff had to file in the United States
The first part of a request for a protective order should explain why plaintiff needed to
file in a United States court. If the client is a guestworker, you can argue that s/he was actively
recruited by U.S.-based companies after the companies certified that no American workers were
available for the job. The client is also suing in the district where the legal violation took place.
In Connell v. City of New York, the court refused to require an indigent plaintiff to return
to the forum for the deposition because “plaintiff had no choice but to bring suit in the Southern
District of New York as his claims involve the New York City Police Department.”44 In
Kovalsky v. Avis Rent-a-Car, Inc., the court agreed with plaintiff that since her only option was
to assert her claim in Puerto Rico, her request to be deposed in her home state of New Jersey
should be granted.45 In Endte v. Hermes Export Corp., the court recognized that in certain cases,
not being able to bring a lawsuit in the United States might leave plaintiff without an available
remedy.46 Finally, in Federal Practice and Procedure, the authors note, “If a plaintiff has sued
in a court far distant from home because the transaction in question occurred in that district. . . .
41
Fed. R. Civ. P. 26(c)(1), “A party or any person from whom discovery is sought may move for a protective order
in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the
district where the deposition will be taken. The motion must include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.
The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense....”
42
Fed. R. Civ. P. 26(c)(2).
43
Seuthe v. Renewal Products, 38 F.R.D. 323, 324 (S.D.N.Y. 1965).
44
Connell v. City of New York, 230 F. Supp. 2d 432, 437 (S.D.N.Y. 2002).
45
Kovalsky v. Avis Rent-a-Car. Inc., 48 F.R.D. 453, 454 (D. P.R. 1969).
46
Endte v. Hermes Export Corp., 20 F.R.D. 162, 164 (S.D.N.Y. 1957).
the usual rule requiring plaintiff to come to the forum for his or her deposition seems
inappropriate.”47
ii.) Undue Burden or Hardship to Return to the United States
- Difficulty Obtaining Visas
A non-U.S. citizen living outside of the United States may be unable to return to
the forum state because s/he would be denied a visa to re-enter the country. This could be due to
admissibility bars or their indigent status (see Appearing in the United States for Depositions). In
the likely event that one cannot apply for visas or parole to enter the United States before moving
for the protective order, explain in the motion why it is unlikely that your client will receive a
tourist visa and/or the difficulty and length of time involved in obtaining parole into the country.
Several advocates have successfully made these arguments in application for protective
orders. In one case, advocates argued that because it was impossible for the migrant plaintiff
farmworker to return to the United States because of admissibility bars, he should be allowed to
testify via video-conferencing.48 In Luna v. Del Monte Produce, the client’s lack of assets was
highlighted as one of many arguments showing the impracticability of the workers returning to
the United States for depositions.49 If the tourist visa applications were denied, the advocates
further argued, the H-2 guestworker clients would be barred from applying for guestworker visas
for a certain period of time, thus jeopardizing a source of income they relied on to support their
families.50 Because parole is granted sparingly, plaintiffs wished to reserve this option for trial
or other proceedings in which their present and live testimony might be required.51
- Economic hardship to apply for visa and travel internationally
Additional arguments in Luna v. Del Monte Produce, emphasized the financial burden
that applying for a visa would have on their clients especially when the chances of acquiring the
visa were very low. 52 Just the process alone was burdensome due to the costs of applying for
travel documents.53 The advocates also detailed the expenses of international travel, food and
lodging, which were prohibitive.54 Furthermore, the time-consuming process of applying for the
required travel documents would force these manual laborers to forego many days of work and
thus result in a substantial loss of income.55 The court accepted these arguments when ruling
47
CHARLES A.WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2112 (2nd ed. 2006).
48
Pl. Motion to Offer Videotaped Trial Depositions or Video-teleconferenced Testimony and Continuance ¶ 10
Plaintiff Husband et. al., v. Driver Defendant, et. al, No. 05-01649, (Chester County Ct. Aug. 9, 2006).
49
Luna v. Del Monte Produce, Pl. Mem. of Law in Support of Mot. for Protective Order, No. 1:06-cv-0200-JEC,
(N.D. Ga. October 30, 2002).
50
Id. at 10.
51
Id. at 11.
52
Id.
53
Id. at 17.
54
Luna v. Del Monte Produce, Pl. Mem. of Law, at 17.
55
Id. at 18.
that the depositions were to be held in Mexico, where the plaintiffs resided, or by alternative
means (video, telephone, or written questions).56
- Extreme Hardship
Extreme hardship can be found where the requirement to travel would have a negative
impact of deponents’ ability to perform work for the public good. For example, in Scorano v.
Crozer-Choster Medical Center, a number of doctors and nurses were granted protective orders
and allowed to give depositions at the Medical Center where they worked.57 The judge ruled that
because the doctors and nurses played an integral role at the Medical Center, patient care would
be compromised by forcing them to travel to the forum in Philadelphia to be deposed, resulting
in extreme hardship.
iii.) Availability of Alternatives
Finally, plaintiff may want to illustrate the availability of satisfactory alternatives to an

in-person deposition. This might include having the defendant conduct depositions by telephonic
or video-conferencing, having the defendant conduct depositions by written questions pursuant
to Federal Rules of Civil Procedure 31, or allowing depositions at the forum venue close to trial
to give plaintiff time to apply for parole to testify in the proceedings.
Some case law suggests that it may be good practice to demonstrate how burdensome
travel to the forum would be by providing financial evidence. In Clem v. Allied Van Lines
International Corp, the court rejected plaintiff's request to conduct his deposition by telephone
from abroad, holding that “absent extreme hardship, the plaintiff should appear for deposition in
his chosen forum.”58 The court explained that although the plaintiff was living in Hong Kong at
the time, he had not adequately detailed his financial position in a way that allowed the court to
assess whether the cost of attending the forum was prohibitive. The court felt that the cost of
transportation, estimated at $3,000, was not extreme, as the claims involved were in excess of
$130,000., Furthermore, the plaintiff anticipated travelling to the United States later that same
year. The District Court in the Southern District of New York denied also plaintiff’s request for a
telephone deposition in Daly v. Delta Airlines for similar reasons, explaining that some hardship
and inconvenience did not amount to extreme hardship.59
More recent case law suggests that the developing trend in federal courts allows for
greater flexibility in the manner of taking depositions regardless of a showing of hardship. For
example, in Rehau v. Colortech, Inc., the District Court for the Western District of Michigan
granted plaintiff’s motion to have depositions conducted by telephone because there was no
indication that the integrity of the discovery process would be compromised by such an
allowance.60 In fact, the court specifically rejected the idea that any showing of hardship is
required, noting: “Nothing in the language of Rule 30(b)(7) requires that a telephonic deposition
56
Luna v. Del Monte Fresh Produce, 2007 U.S. Dist. LEXIS 36893, at *9-11 (N.D. Ga. May 18, 2007).
57
Scarano v. Crozer-Chester Medical Center, 1991 U.S. Dist. LEXIS 16392, at *6 (E.D. Pa. 1991).
58
Clem v. Allied Van Lines International Corp., 102 F.R.D. 938, 940 (S.D.N.Y. 1984).
59
Daly v. Delta Airlines, 1991 WL 33392, at *2 (S.D.N.Y. Mar. 7, 1991).
60
Rehau v. Colortech, Inc., 145 F.R.D. 444, 446-47 (W.D. Mich. 1993).
may only be taken upon a showing of necessity, financial inability, or other hardship . . . by
looking to a concomitant 1980 amendment to Rule 30, one discerns a purpose to encourage the
courts to be more amenable to employing non-traditional methods for conducting depositions . . .
in order to reduce the cost of federal litigation.”61 The Southern District of New York supported
this view when, subsequent to Clem, it stated that, “the Federal Rules of Civil Procedure and a
steadily developing body of case law recognize that telephone depositions are a presumptively
valid means of discovery.”62
In a rather amusing hearing regarding a discovery dispute, a judge emphasized that

requiring the plaintiffs to travel by bus or plane to Arkansas was simply not a reasonable solution
due to the cost and the difficulty of indigent, non-English speaking farmworkers to navigate the
transportation options.63 The court concluded that a telephone deposition was the best alternative
if the defendants did not want to travel from Arkansas to various U.S. states or Mexico to depose
the plaintiffs.64
It may be helpful to draw parallels to other areas of law, which use telephone depositions
more regularly, such as unemployment compensation. Most states require the claimant to be
physically present at the workers’ unemployment compensation hearing, a hurdle that can be
challenging for workers who have left the state of employment. Courts, however, have
increasingly allowed claimants to attempt to show “good cause” for not being able to appear.65 A
trend has developed toward eliminating the appearance requirement in unemployment
compensation hearings, and allowing telephonic testimonies instead.66 These cases may provide
helpful precedent in establishing the adequacy of alternative methods for depositions.
iv.) Additional Arguments-Abuse of Discovery
Defendants are unlikely to be amenable to reasonable alternatives to in-person

depositions since it is in their best interest to push the court to deny plaintiff’s request for a
protective order. If plaintiff is unable to reach the forum and the protective order is denied, the
suit may be dismissed, or at the very least, severely weakened. Forcing indigent plaintiffs to pay
travel expenses may deplete resources available for trial, or cause significant delay in the
proceedings. If this situation arises, it may be useful to make an argument alleging abuse of
discovery on the part of the defendant.
61
Id. at 446.
62
Normande v. Grippo, 2002 WL 59427, at *2 (S.D.N.Y. Jan. 16, 2002).
63
Id. at *11-12.
64
Heriberto-Gonzales Jimenez v. Gillam, Hearing Transcript, No. 4:04-CV-00506 at 9 (E.D. Ark. Jan. 26, 2005).
65
See, e.g., Javier v. Goodwill Indus. of S. Fla., Inc., 882 So.2d 524, 525 (Fla. Dist. Ct. App. 2004); Webb v. Labor
& Indus. Relations Com’n of Mo., 674 S.W.2d 672 (Mo. Ct. App. 1984).
66
Allan A. Toubman, Tim McArdle & Linda Rogers-Tomer, Part II: Unemployment Compensation and Procedural
Issues: Due Process Implications of Telephone Hearings: The Case for an Individualized Approach to Scheduling
Telephone Hearings, 29 U. MICH. J.L. REFORM 407, 407 (1996).
In Societe Nationale Industrielle Aerospatiale v. U. S. Dist. Ct. for the S.D. of Iowa, the
Supreme Court pointed out the potential for abuse of the discovery process when foreign litigants
are involved in U.S.-based lawsuits.67 Justice Stevens, writing for the majority, explained:
American courts, in supervising pretrial proceedings, should exercise special
vigilance to protect foreign litigants from the danger that unnecessary, or unduly
burdensome, discovery may place them in a disadvantageous position. Judicial
supervision of discovery should always seek to minimize its costs and
inconvenience and to prevent improper uses of discovery requests. When it is
necessary to seek evidence abroad, however, the District Court must supervise
pretrial proceedings particularly closely to prevent discovery abuses. For
example, the additional cost of transportation of documents or witnesses to or
from foreign locations may increase the danger that discovery may be sought for
the improper purpose of motivating settlement, rather than finding relevant and
probative evidence. Objections to "abusive" discovery that foreign litigants
advance should therefore receive the most careful consideration.68
In this case, the Supreme Court was addressing the plight of a foreign defendant being
compelled to produce evidence and witnesses in the United States. The numerous federal cases
citing this part of the court’s opinion also generally involve motions to compel foreign defendant
corporations to testify within the United States, or the adjudication of claims by foreign
defendant corporations that they should be deposed in their home countries. In one particularly
relevant case, Pietraroia v. Northeast Utilities, the Supreme Court of the State of Connecticut
granted a protective order to an Australian plaintiff who had filed a workers’ compensation claim
against his Connecticut employer.69 The plaintiff claimed he had suffered lasting, serious
pulmonary damage from exposure to asbestos. The defendant attempted to compel plaintiff to
return to Connecticut to be examined by defendant’s choice of doctor. The court ruled in favor of
the plaintiff, writing:
[I]t is only realistic in today's mobile world to expect that claimants may well no
longer live in or near Connecticut by the time they discover that they have
contracted asbestosis, and that, as in the present case, by that time they may
have moved to other countries thousands of miles away. ‘Occupational diseases
are, from a legal standpoint, peculiar in this -- that they arise, not from an
accident or event happening at a precise moment, but from a day to day
exposure to unhealthful conditions over an extended period; the exact time of
their origin is necessarily obscure and their insidious progress is not revealed
until, frequently after a long interval, the disability which they create manifests
itself.’70
b. Paying Expenses Related to Depositions Outside of the United States
If the court grants a protective order the issue remains of how the additional costs will be
allocated. Under Federal Rules of Civil Procedure, Rule 30(b)(2), “the party taking the
deposition shall bear the cost of the recording,” but the rules are silent on how additional costs
accrued in conjunction with a deposition abroad are to be allocated. If the plaintiff is requesting
67
Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S.D. of Iowa, 482 U.S. 522, 546 (1987).
68
Id.
69
Pietraroia v. Northeast Utilities, 756 A.2d 845, 855 (Conn. 2000).
70
Id. at 855 (citing Green v. General Dynamics Corp., 245 Conn. 72, 73 (1998)).
that depositions take place outside of the United States, the burden may be on the plaintiff to
cover the “fair and reasonable expenses” of the extraterritorial deposition.71
“Reasonable costs” do not need to include attorneys’ fees. In Luna v. Del Monte Produce,
the judge ordered plaintiffs to pay for the cost of conducting the depositions abroad, including
airfare and lodging for two attorneys and a court reporter, but ruled that plaintiffs did not have to
cover the cost of Defendant’s attorney’s fees.72 Other protective orders have been successful with
securing overseas depositions without the burden of additional expenses shifting to the
plaintiffs.73
c. Procedural Challenges
Pursuant to Rule 28(b) of the Federal Rules of Civil Procedure, depositions may be
conducted in foreign countries. Rule 30(b) lays out the other formal requirements for conducting
oral depositions, which must be taken under oath. States’ laws also make provision for the taking
of depositions abroad.74
i. Unlawful Practice of Law in a Foreign Country
Whether a U.S. attorney conducting a deposition on foreign soil is engaging in the unlawful
practice of law in that country is an issue that must be explored before moving ahead with a
deposition. The U.S. consulate in Guatemala warns U.S. attorneys not to conduct a deposition
without the supervision of a Guatemalan attorney because of potential criminal charges.75 The
absence of a similar admonishment on the U.S. consulate in Mexico’s website suggests that in
Mexico this is not a concern although the issue requires further research.
ii. Administering the Oath
At the outset of a deposition, the officer administering the oath must state “(i) the
officer's name and business address; (ii) the date, time, and place of the deposition; (iii) the
71
Javier Lizarraga-Ruiz v. Georgia-Pacific Corp., Ct. Order No. 4:00cv37/RV/SMN, at 2 (N. Dist. of Fl. Nov. 8,
2001).
72
Luna v. Del Monte Fresh Produce, 2007 U.S. Dist. LEXIS 36893, at *11 (N.D. Ga. May 18, 2007).
73
Heriberto-Gonzales Jimenez v. Gillam, Ct. Order No. 4:04-CV-00506 (E.D. Ark. Jan. 27, 2005).
74
For example, in New York, depositions may be taken “in a foreign country, any diplomatic or consular agent or
representative of the United States, appointed or accredited to, and residing within, the country, or a person
appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the
acknowledgment of deeds.” N.Y. C.P.L.R. Rule § 3113. In Florida, “in a foreign country depositions may be taken
(1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by
the law thereof or by the law of Florida or of the United States, (2) before a person commissioned by the court, and a
person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take
testimony, or (3) pursuant to a letter rogatory.” 4 FL. PRAC. R 1.300 (b). Florida also has a provision which
allows“depositions may be taken before any person at any time or place upon any notice and in any manner and
when so taken may be used like other depositions.” 4 FL. PRAC. R 1.300(c). No formal court action is required
when “where the witness to be deposed in another state will voluntarily appear and the parties are content to have a
local court reporter place the witness under oath and transcribe the testimony … and the deposition transcript can be
used in all ways authorized by the rules.” 4 FL. PRAC. R 1.300(c)(Author’s Comments Section).
75
Embassy of the United States - Guatemala, U.S. Citizen Services, Legal Information and Assistance
http://guatemala.usembassy.gov/acs_judicial_assistance.html (last visited, Nov. 11, 2008).
deponent's name; (iv) the officer's administration of the oath or affirmation to the deponent; and
(v) the identity of all persons present.”76 The oath must be administered in the physical presence
of a person authorized to administer the oath, which when conducted in the United States is
commonly a court reporter who is licensed as a notary.77
Perhaps the most difficult hurdle in conducting a deposition abroad is ensuring that the
officer administering the oath to the deponent has the proper jurisdiction. The Federal Rules
dictate various methods of conducting depositions abroad that are worthy of exploration.
Pursuant to Rule 28 of The Federal Rules of Civil Procedure, a deposition in a foreign country
may be taken: “(a) under an applicable treaty or convention; (b) under a letter of request, whether
or not captioned a “letter rogatory”; (c) on notice, before a person authorized to administer oaths
either by federal law or by the law in the place of examination; or (d) before a person
commissioned by the court to administer any necessary oath and take testimony.”78 An analysis
of each section follows.
- Depositions Taken Under an Applicable Treaty or Convention
The first part of Rule 28 states that a deposition can be made “under an applicable treaty
or convention.”79 The Hague Convention on Taking Evidence Abroad in Civil or Commercial
Matters, also known as the Hague Convention on Evidence, is an international treaty designed to
improve international judicial cooperation in civil and commercial proceedings.80 The
Convention establishes a set of procedures for obtaining evidence outside of the country where a
case is pending, and when the country where a deposition is sought is a party to the Convention,
the Convention’s procedures may be invoked. The Convention currently has 44 Contracting
States, including the United States and Mexico, but not Guatemala.81 The mechanisms set forth
in the Convention are not mandatory under U.S. law, but offer an alternative method for
conducting discovery in transnational litigation.82
Article 1 of the Hague Convention on Evidence provides for the use of Letters of Request
to solicit cooperation from a foreign judicial system in gathering evidence, through a medium
such as depositions.83 A Letter of Request can be sent directly from a U.S. court presiding over
76
Fed. R. Civ. P. 30(a)(5)(A).
77
See e.g., National Notary Association, Administering Oaths, Affirmations And Jurats (Mar. 1, 1999), available at
http://www.nationalnotary.org/news/index.cfm?Text=newsNotary&newsID=82; Florida Governor's Reference
Manual For Notaries, Duties of a Notary 13 (citing Attorney General Opinion, No. 92-95, December 23, 1992),
(November 2001), available at http://www.flgov.com/notary_ref_manual; Washington v. Montefiore Hosp., 777
N.Y.S.2d 524, 526 (3d Dep’t 2004) (finding deposition invalid when oath administered over the telephone). But see
N.Y. C.P.L.R. § 3113 (d)(McKinney 2005), which suggests that the parties can stipulate to the officer administering
the oath remotely.
78
Fed. R. Civ. P. 28(b).
79
Fed. R. Civ. P. 28(b)(1)(A).
80
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [hereinafter Hague
Convention on Evidence], opened for signature Mar. 18, 1970, 23 U.S.T. 2555, reprinted following 28 U.S.C. §
1781 (1994 & Supp. 1999), available at http://www.hcch.net/index_en.php?act=conventions.pdf&cid=82.
81
Id.
82
Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482
U.S. 522, 529 (1987).
83
Hague Convention on Evidence, supra note 80 at Article 1.
litigation to a central authority in another Contracting State.84 In other words, the forum court
sends an official letter of request to the relevant authority in the plaintiff’s or witness’ home
country requesting that they take the deposition. The manner in which the deposition is taken
will depend on the procedures in that country. "The judicial authority which executes a Letter of
Request shall apply its own law as to the methods and procedures to be followed."85 State
signatories to the Hague Convention on Evidence are generally required to comply with requests
issued pursuant to the instrument. The Convention allows, however, for states to limit their
acceptance of the instrument through the use of reservations. Thus, the extent to which a State
party must abide by the Convention may be limited. Where the foreign state in question is not a
signatory to the Hague Convention on Evidence, the Convention has no binding effect.
- Depositions Taken Under a Letter of Request
The second part of Rule 28 states that a deposition may be undertaken abroad under a
letter of request, whether or not captioned a “letter rogatory.”86 A letter of request, also known as
a letter rogatory, is a formal appeal from a court in one country to judicial authorities in another
country used to seek compulsion of evidence or service of process.87 This includes the taking of
depositions. The letter typically would be utilized in cases where evidence is being suppressed in
a foreign country and the U.S. Court wishes to use the power of the local judiciary to compel
presentation of the evidence, or where the U.S. Court is having trouble serving process on a
foreign resident and requires the assistance of the foreign court.88 Note that a foreign court will
take testimony in accordance with the laws of its own nation. "In executing a letter rogatory the
courts of other countries may be expected to follow their customary procedure for taking
testimony."89
- Depositions Taken on Notice Before a Person Authorized to Administer Oaths
The third part of Rule 28 states that a deposition may be taken “on notice before a person
authorized to administer oaths in the place where the examination is held, either by the law
thereof or by the law of the United States.”90
As noted previously, it is common practice for a notary in the United States to conduct
the oath in a deposition occurring in the United States. Generally, however, a notary public in
84
Id. “In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the
provisions of the law of that State, request the competent authority of another Contracting State, by means of a
Letter of Request, to obtain evidence, or to perform some other judicial act.” Id.
85
Hague Convention on Evidence, supra note 80. See also Volkswagenwerk Aktiengesellschaft v. Superior Court, 33
Cal.App.3d 503 (Cal. App. 1973) (finding that "courts ordering discovery abroad must conform to the channels and
procedures established by the host nation.").
86
Fed. R. Civ. P. 28(b)(1)(B).
87
U.S. Dep't of State, Preparation of Letters Rogatory [hereinafter Letters of Rogatory] available at
http://travel.state.gov/law/info/judicial/judicial_683.html (last visited November 8, 2008).
88
For more information on related procedures, See http://travel.state.gov/law/info/judicial/judicial_683.html.
89
Advisory Committee Notes, 1963 Amendment, Fed. R. Civ. P. Rule 28.
90
Fed. R. Civ. P. 28(b)(1)(C).
the United States cannot perform the function of notary abroad.91 Even though some states
authorize notaries to perform notarial functions outside the United States, notarizing a document
outside the United States could also violate the laws of the foreign country, unless the notarizing
officer is specifically authorized by local (foreign) law or applicable international treaty.92 It may
be well worth contacting the state notary association to determine if notaries in your state can
administer oaths outside the United States or if remote means are possible.93
Many transnational advocates use a U.S. notary in the foreign country to conduct the oath
and have the defendants stipulate to the legitimacy of that arrangement. Although this practice
has not been challenged, it is not clear that the parties have the authority to allow a notary to
conduct an oath where he has no legal authority to do so. Other alternatives exist, that although
are not as familiar and convenient as perhaps using a U.S. notary, may be more in compliance
with the federal rules.
Under U.S. law, all U.S. consular officials are authorized to administer oaths.94 The U.S.
Consulate in Mexico charges approximately $200 per hour to attend depositions. 95 Details vary
by consulate.96
People authorized by the foreign country to administer oaths within its borders are an
additional option. In many states, including most Latin American countries, one must be a
lawyer in order to be a notary. Although it is likely possible to use a foreign notary to conduct
the oath, this must be explored further.97
iv. Deposition Taken Before a Person Commissioned by the Court
The fourth option is to seek authorization from the court to appoint someone to
administer the oath. The rule specifically reads that a deposition may be taken, “[b]efore a person
commissioned by the court to administer any necessary oath and take testimony.”98 A
commission to administer oaths in a deposition is “a written authority issued by a court of
justice, or by a quasi-judicial body, or a body acting in such capacity, giving power to take the
91
“The commission of a notary public is limited to the jurisdiction within the particular state in the U.S. for which
the commission was issued.” Notarial and Authentication Services of U.S. Consular Officers Abroad, U.S. Dep’t of
State, available at http://travel.state.gov/law/info/judicial/judicial_2086.html. See National Notary Association,
http://www.nationalnotary.org/ for more information.
92
Performance of Notary Functions Abroad By American Notaries Public or State Commissioners Of Deeds
[hereinafter Notary Functions Abroad], U.S. Dep’t of State, http://travel.state.gov/law/info/info_630.html.
93
See generally National Notary Association, supra note 91 for more information.
94
22 U.S.C. § 4221.
95
U.S. Dep’t of State, International Judicial Assistance: Mexico,
http://travel.state.gov/law/info/judicial/judicial_677.html. See U.S. Consular Officers Abroad available at
http://travel.state.gov/law/info/judicial/judicial_2086.html for more information on consular services.
96
See U.S. Dep’t of State for country specific information available at
http://travel.state.gov/law/info/judicial/judicial_2510.html#g. See also
http://guatemala.usembassy.gov/acs_judicial_assistance.html for Guatemala information.
97
See Colegio de Notarios Distrito Federal, Preguntas Frequentes, for general information on the services of
Mexican notaries, available at http://www.colegiodenotarios.org.mx/prensa/cndfpf.htm. Global Workers is currently
researching this option. For more up-to-date information contact our office.
98
Fed. R. Civ. P. 28(b)(1)(D).
testimony of witnesses who cannot appear personally to be examined in the court or before the
body issuing the commission.”99
“Under Federal law . . . and under the laws of some of the States, a commission to take
depositions can be issued to a foreign official or to a private person in a foreign country.”100 On
its face, it seems to suggest that is possible to petition the court to appoint a private person to
conduct the oath abroad.101 However, commissions are generally issued to U.S. notarizing
officers.102 Notarizing officers include specified Department of State officials or individuals
otherwise authorized by the Secretary of State.
Every secretary of embassy or legation and consular officer is authorized . . . at
the post, port, place, or within the limits of his embassy, legation, or consulate,
to administer to or take from any person an oath, affirmation, affidavit, or
deposition, and to perform any notarial act which any notary public is required
or authorized by law to do within the United States. At any post, port, or place
where there is no consular officer, the Secretary of State may authorize any
other officer or employee of the United States Government who is a United
States citizen serving overseas, including any contract employee of the United
States Government, to perform such acts, and any such contractor so authorized
shall not be considered to be a consular officer.103
But keep in mind, “In countries where the right to take depositions is not secured by treaty,
notarizing officers may take depositions only if the laws or authorities of the national
government will permit them to do so.”104
ii. Recording Depositions
Another issue to address is how to record the deposition. Under the Federal Rules of Civil
Procedure, “unless the court orders otherwise, testimony may be recorded by audio, audiovisual,
or stenographic means.105 A party is not required to first obtain permission from the court or
from the other party.106 Most practitioners utilize court reporters for a simultaneous, stenographic
99
22 C.F.R § 92.53. “In Federal practice, a commission to take depositions is issued only when necessary or
convenient, on application and notice. The commission indicates the action or hearing in which the depositions are
intended to be used, and the person or persons required to take the depositions, usually by name or descriptive title
(see 92.55 for manner of designating consular officers).” Id.
100
22 C.F.R. § 92.66 (1995).
101
It may be worth testing out this proposition by petitioning the court to authorize a private party to conduct an oath
abroad.
102
22 C.F.R. § 92.66(a).
103
22 U.S.C.A. § 4221 (1998).
104
22 C.F.R. § 92.55. Under the terms of the multilateral treaty the Vienna Convention on Consular Relations,
consular functions include that of acting as a notary "provided that there is nothing contrary thereto in the laws and
regulations of the receiving State." Vienna Convention on Consular Relations Art. 5(f), Apr. 24, 1963, 21 U.S.T. 77.
The United States and Mexico have ratified this treaty; in addition, the United States and Mexico also have a
bilateral treaty, the Convention between the United States of America and Mexico Respecting Consular Officers,
Mar. 26, 1943, 57 Stat. 800.
105
Fed. R. Civ. P. 30(b)(3)(A).
106
Advisory Committee Notes, 1993 Amendments, subdivision (b) (1993 Amendments), Fed. R. Civ. P. 30(b). See,
e.g., Convolve Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 182 (S.D.N.Y. 2004) (noting that the party taking
the deposition may choose the means of recording it and has no burden to justify the decision) (citations omitted)).
(written), verbatim record of the oral testimony. Court reporters, however, are generally not
available abroad.107 There is not much guidance as to whether a court reporter can record the
deposition remotely. 108 Unless one checks with the court prior to the deposition, it may be wise
to have the court reporter physically present at the location where the deponent is giving
testimony. A good alternative to engaging a court reporter altogether is to record by video or
audio the deposition. The court will require a transcript only if the recorded deposition will be
used at trial or in a dispositive motion.109 No special qualifications are needed for the person who
operates the audio or visual equipment.110
iii. Interpreters
There are no specific requirements for who can serve as an interpreter during a
deposition, although federal court certified translators are generally more reliable.111 In some
countries, such as Mexico, court certified translators are available but expensive. You may want
to make arrangements to have the translator with whom you are familiar to travel abroad or seek
out local interpreters. Most U.S consulates have a list of local interpreters on file.

107
See, e.g., International Judicial Assistance: Mexico, U.S. Dep’t of State, available at
http://travel.state.gov/law/info/judicial/judicial_677.html.
108
See e.g., Washington v. Montefiore Hosp., 777 N.Y.S.2d 524, 526 (3d Dep’t 2004). In Washington, the court
reporter who administered the oath and transcribed the testimony was not present in the deponent’s office during his
testimony but was listening to the deponent’s testimony over the telephone. Id. However, it is unclear whether the
deposition would have been held invalid had the officer administering the oath been present at the deposition and
had had another individual recording the testimony remotely through stenographic or other means.
109
Fed. R. Civ. P. 32(c).
110
N.Y. Ct. Rules, § 202.15. For example, in New York, the operator of the camera may be an employee of the
attorney taking the deposition, and need not be the officer. § 202.15(c). The same rules are applicable for an audio-
taped deposition. § 202.15(j).
111
See e.g., Fed. R. Evid. 604 (“An interpreter is subject to the provisions of these rules relating to qualification as
an expert and the administration of an oath or affirmation to make a true translation.”)
II. Trial
Trial can present many of the same challenges as discovery when your client is outside
the United States, and similar processes may be used to bring your client into the U.S. for trial, or
secure a protective order allowing them to testify from abroad.
A. Returning for Trial
It may be beneficial for your client to appear in person. A personal appearance is

particularly advantageous where character, credibility and/or truthfulness are at issue. It may also
help to provide in-person testimony when there is a lack of concrete evidence in the case. In-
person testimony can likewise make the plaintiff’s case more sympathetic, and allow the plaintiff
to answer questions from the judge. For more information on the various options to bring the
client to the United States, see § I.A.1 Appearing in the United States for Depositions.
B. Admitting Depositions in Lieu of Live Testimony
If depositions have been taken outside of the United States, plaintiffs can move to have them
admitted in lieu of live testimony. Advocates will face two restrictions concerning the
admissibility of the depositions at trial. First, Rule 32(a)(3)(B) of the Federal Rules of Civil
Procedure provides that the deposition of a witness may be used by either party if “the witness is
at a greater distance than 100 miles from the place of trial or hearing, or is out of the United
States, unless it appears that the absence of the witness was procured by the party offering the
deposition.” This means that the party proffering the deposition must establish that the witness is
more than 100 miles from the forum due to circumstances independent of the litigation.
Second, the party invoking Rule 804 of the Federal Rules of Evidence, which allows
depositions to be admitted in lieu of testimony as an exception to the hearsay rule, bears the
burden of proving that the witness is unavailable.112 A declarant is "unavailable" if s/he “is
absent from the hearing and the proponent of a statement has been unable to procure the
declarant's attendance . . . by process or other reasonable means… [a] declarant is not
unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is
due to the procurement or wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.”113 Under Rule 804, reasonable attempts
must be made to bring the witness to the forum for the purpose of in-person testimony or
deposition. If the witness is unable to reach the forum, a satisfactory explanation must be offered
as to why the witness is unable to attend the hearing. In the case of transnational migrant worker
litigation, arguments relating to prohibitive costs, and immigration or visa requirements, may
satisfy this burden.
112
Garcia-Martinez v. City & County of Denver, 392 F.3d 1187, 1192 (10th Cir. 2004).
113
Fed. R. Evid. 804(a).
Typically, advocates take the deposition of their clients overseas, or before they leave the
country, and then submit the deposition as testimony at trial without demonstrating efforts made,
if any, for the client to return to testify in person. Although this is standard practice, in the 10th
Circuit this was challenged and the deposition rejected. In Garcia-Martinez v. City and County of
Denver, the Tenth Circuit refused to admit the deposition of the plaintiff, a Honduran national
who had returned to Honduras.114 The court ruled that because Garcia-Martinez had “brought
about his own absence,” the deposition was inadmissible under Federal Rules of Civil Procedure
32(a).115 The court made this determination based on the lack of evidence that Garcia-Martinez
could not return to the United States, or that there was a satisfactory alternative means of
testifying. The court further ruled that the trial court retained significant discretion in applying
Rule 32 to an absent party.116
Second, the court ruled that Garcia-Martinez was not eligible for an exception as an
“unavailable witness” under Federal Rules of Evidence 804 because (1) he voluntarily failed to
return for trial, (2) his absence was calculated and (3) there was no showing that alternative
options for testimony had been exhausted.117 The court was not swayed by the fact that Garcia-
Martinez was under a standing deportation order, and had previously been cautioned by a
magistrate judge that he risked being arrested and imprisoned if he showed up to the trial.118
Although the case has yet to have an impact beyond the Tenth Circuit, it may be prudent to
demonstrate why the client is unable to provide in-person testimony at trial.
114
Garcia-Martinez, 392 F.3d 1187.
115
Id. at 1192.
116
Id.
117
Id. at 1193.
118
Id. at 1190, 1192-93.
III. Using U.S. Courts to Address Violations of U.S. Law to Foreign
Clients on Foreign Soil
A. Extraterritorial Applications of U.S. Law
1. Background
“Extraterritoriality” is the question of whether a U.S. law applies outside the territorial
borders of the United States; in other words, whether U.S. courts have jurisdiction to hear claims
about violations that took place outside of the United States. This is relevant to cases that involve
the abuse of migrant workers in their home countries, such as discrimination on the basis of age
or gender for certain guestworker positions, extortionist demands for fees by recruiters, or
unreasonable conditions during transport to the United States, etc..
If the plaintiff is claiming a statutory violation, the court will look at the intent of
Congress to determine whether the statute applies extraterritorially. Absent a strong indication by
Congress to the contrary, the presumption is that Congressional statutes are meant to only apply
within the territorial boundaries of the United States.119
The burden of overcoming the presumption against extraterritoriality is on the party

claiming that the statute should apply abroad.120 In order to overcome the presumption, the party
must prove that Congress intended the statute to apply outside of the United States. The party
must provide “clear evidence of Congressional intent.”121 To ascertain Congressional intent, the
Court may examine the text of the legislation, the structure of the legislation or the legislative
history.122
2. Extraterritorial Application of Federal Laws
To address abuses suffered abroad in the guestworker program, advocates have argued
that these actions violate Title VII of the Civil Rights Act of 1964 and the Age Discrimination in
Employment Act (ADEA). These arguments have not provided relief to workers thus far.
In order to bring a private claim in U.S. courts based on a violation of these statutes that
occurred overseas to a non-U.S. citizen, you generally need to prove two things: (1) Congress
intended the statute in question to apply extraterritorially; and (2) the non-citizen was “qualified”
or authorized to work in the United States.
Title VII is a broad measure, originally passed by Congress in 1964, 123 that prevents
discrimination in the workplace based on gender, race, religion, color or national origin.124 The
119
E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 288 (1991).
120
Labor Union of Pico Korea, Ltd. v. Pico Prods., Inc., 968 F.2d 191, 194 (2d Cir.), cert. denied, 506 U.S. 985
(1992).
121
Smith v. United States, 507 U.S. 197 (1993).
122
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 204 (1993).
123
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2008).
Americans with Disabilities Act (ADA)125 prohibits discrimination against people with
disabilities, and the ADEA prohibits age-based discrimination.126 Originally, none of these acts
applied to discrimination that took place overseas. In 1991, Congress enacted legislation
clarifying that the ADA and Title VII applied to discrimination that occurred outside the United
States, provided that it was perpetrated by an American corporation or an agent under the control
of an American corporation, and that the offended party was a U.S. citizen.127 Congress specified
in the legislation that the provisions would not apply to non-U.S. citizens who suffered
discrimination abroad.128 The same limitations apply to the extraterritoriality of the ADEA.129
This does not mean that non-U.S. citizens cannot make claims regarding statutory
discrimination, but it does mean that the employment in question had to be in the United States.
As discussed below, courts have struggled to interpret exactly when claims brought under
Title VII, the ADA and the ADEA begin to apply in the case of foreign workers applying for
jobs in the United States, and the Supreme Court has yet to take up the issue.
3. Qualified for Employment
In the case of H-2 guestworkers, the issue of authorization is not whether the worker was
authorized to work in the United States, thus qualifying for statutory protections, but when that
authorization began.
In Reyes-Gaona, the Fourth Circuit ruled that a non-U.S. citizen did not have a
cognizable claim of age discrimination under the ADEA because the discriminatory behavior
took place abroad.130 The court noted that under the ADEA the term “employee” means an
individual employed by any employer, and includes any individual who is a citizen of the United
States employed by an employer in a workplace in a foreign country.131 Thus, the ADEA was
deemed not to apply to foreign nationals who applied for United States jobs in foreign countries.
In order to make this claim, the court ruled that the ADEA plaintiff must prove that he was
qualified for the job he sought. Under Fourth Circuit precedent, in order for a foreign national to
be “qualified” for a position, s/he needed to be authorized for employment in the United States at
the time in question.132 Submission of a résumé alone was insufficient to establish qualification
or authorization.133
124
42 U.S.C. § 2000(e) (2) & (3) (2006).
125
42 U.S.C. § 12101 (a) & (b).
126
29 U.S.C. § 621(b).
127
See 42 U.S.C. § 2000e-1(c).; 42 U.S.C. § 2000e(f).
128
42 U.S.C. § 2000e-1(a). The Act would not "apply to an employer with respect to the employment of aliens
outside any State." Id.
129
29 U.S.C. § 630(f).
130
Reyes-Gaona, 250 F. 3d 861, 866-7.
131
Id. at 864 (citing 29 U.S.C.S. § 630(f)).
132
Id. at 863 (citing Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187 (4th Cir. 1998)).
133
Id. at 866. Contra the National Immigration Law Center for an opinions criticizing this decision for its emphasis
on where the discrimination occurred as opposed to where the employment would be, available at
http://www.nilc.org/immsemplymnt/emprights/emprights026.htm. Fortunately, other circuits to date have not
followed the reasoning of the Fourth circuit.
In Olvera-Morales, a group of women brought a claim against several companies
involved in their recruitment and subsequent employment.134 The women claimed that although
they were qualified for positions with H-2A visas, those positions were reserved for men and the
women were instead steered toward H-2B jobs, which were lower paying and had fewer
guarantees. The defendants claimed that because Olvera-Morales applied on July 20, 1999, and
her I-94 was not approved until July 27, 1999, she was not ”qualified” within the meaning of
Title VII for the position. The court rejected this reasoning, observing “that a categorical ruling
that a foreign national has no protection against discriminatory hiring practices simply because
she applied to work in the United States a few days before receiving INS documentation has the
potential to invite abuse by employers and to undermine the goals of Title VII.”135
4. Contacts with the United States May Render Extraterritorial Application Argument
Unnecessary
Some courts have ruled that contacts between the worker and the United States may be
sufficient enough to apply the law outside the boundaries of the United States to the actions of
the U.S.-based employer, thereby obviating the need to show extraterritorial intent of the law.
For example, in Olvera-Morales v. Sterling Onions, Inc., the application for the
guestworker plaintiff was virtually guaranteed to be approved, and there were significant
contacts with the United States. 136 “Given the extensive contacts with the United States at all
stages of the recruitment, hiring and employment process,” the court wrote, “it is not clear that
the extension of Title VII protection to plaintiff would amount to extra-territorial application of
that law.”137 The court in Olvera-Morales distinguished these facts from those in the Reyes-
Gaona case cited by defendants. 138 The court noted that in Reyes-Gaona, the plaintiff’s
application for work in the U.S. had been rejected and there was no evidence that he had applied
for or expected to receive work authorization to work in the United States.139 Thus, his contacts
with the U.S. had been minimal and were distinguishable from those in Olvera-Morales.140
Most recently, the Fifth Circuit expanded on the “contacts” analysis in Gomez v.
Honeywell Intn’l, Inc.141 In Gomez, the court adopted a “center of gravity test” to determine
when non-U.S. citizens had viable employment discrimination claims.142 To determine whether
an employee is employed within the United States for purposes of the ADEA and Title VII, the
court would review:
134
Olvera-Morales v. Sterling Onions, Inc., 322 F.Supp.2d 211 (N.D.N.Y. 2004).
135
Id. at 220.
136
Id. at 221. Unfortunately, the case was never heard on the merits. The case was transferred to the 4th Circuit,
where the US District Court of Middle North Carolina granted summary judgment for defendants because Olvera-
Morales did not initially name them in her EEOC complaint. Olivera-Morales v. Int’l Labor Mgmt. Corp., Inc.,
2008 WL 939180 (M.D.N.C. Apr. 4, 2008).
137
Id. at 221.
138
Id.
139
Olvera-Moraleas, 322 F.Supp.2d at 221 (citing Reyes-Gaona, 250 F.3d 861).
140
Id. at 221.
141
Gomez v. Honeywell Int’l, Inc., 510 F. Supp. 2d 417, 421-3 (5th Cir. 2007).
142
Id. at 423 (citing Torrico v. IBM Corp., 213 F. Supp. 2d 390, 403-04 (S.D.N.Y. 2002)).
1.) The site of the creation of the employment relationship, including where
the terms of employment were negotiated;
2.) The intent of the parties concerning the location of the employment;
3.) The locations of the reporting relationships for the position at issue;
4.) The actual locations where the employee performed duties and received
benefits, as well as the relative amount of time the employee spent at each of
these sites; and
5.) The location of employee’s domicile.143
The court further noted that “these factors are not exclusive, and the court will consider the
totality of the circumstances of employment. The court will focus on the terms of employment
and the contacts the employee had with the United States by means of his/her employment.”144
143
Id.
144
Id.
IV. CONCLUSION
Transnational litigation is a dynamic and ever changing field. This Manual is a survey of
some of the most salient issues that advocates representing migrant workers face every day when
representing their clients who have returned to their home countries. This is not a
comprehensive survey but one that will spark a more thorough discussion of the issues. With
practitioner input, this Manual will be tested, strengthened, expanded, and updated so that
transnational migrant workers will have access to justice no matter where they migrate after
working in the United States. As advocates, we must rise to that challenge.

Programs
Case Facilitation
Global Workers Justice Alliance facilitates cases for low-wage migrant workers who have left
the country of employment to return home. Practical and legal barriers usually result in migrant
workers being unable to recover wages or obtain medical care for work-related injuries after they
have left the country of employment. Global Workers bridges that gap by connecting and
supporting advocates in the country of employment to the country of origin so that workers have
access to justice no matter where they go.
Advocate Support
Global Workers trains and certifies advocates in the migrant home countries to provide legal
support to workers who have returned from laboring abroad. The trainings focus on the
employment-related and human trafficking laws of the countries of employment. The home
country advocates are then supported by Global Workers as they provide key assistance to
lawyers offering legal representation to the workers who were exploited in the country of
employment. In addition, Global Workers provides legal assistance to advocates facing
challenges specific to representing workers who have left the country. Support materials guide
practitioners to overcome the practical barriers to transnational representation of workers.
Workshops will be held periodically to examine and address these challenges. In addition to the
domestic law focus, the promotion of international and regional law both in the domestic and
international forums as an avenue for change is integral to Global Workers support.
Advocacy
Global Workers advocates for legal and policy reform to remove obstacles to portable justice for
transnational migrants. We accomplish this through publishing articles, participating in
international forums, such as the Global Forum on Migration and Development, and national
arenas to raise awareness, build alliances, and foster change.
Geographic Coverage
The above programs are developing in the United States, Southern Mexico, Guatemala, and El
Salvador and will eventually expand into additional transnational migratory streams. Global
Workers facilitates cases and conducts trainings, in other countries on a case-by-case basis. For
example, Global Workers has already supported cases in Bolivia, Thailand, and Indonesia.
The Global Workers Justice Alliance combats migrant worker exploitation

by promoting portable justice for transnational workers through a cross-
border network of worker advocates and resources.
113 University Place, 8th Floor, New York, NY 10003
917-238-0979 ◊ www.globalworkers.org ◊ info@globalworkers.org
Appendix A Page 31
Appendix A Page 32
U.S. Attorneys
How Global Workers Can Assist you with your Overseas LowWage
Clients
Global Workers Mission

Global Workers Justice Alliance combats worker exploitation by promoting portable justice for
transnational migrants through a cross-border network of advocates and resources. Global Workers
believes that portable justice, the right and ability of transnational migrants to access justice in the country
of employment even after they have departed, is key to achieving justice for today’s global workforce.
Global Workers Defender Network

To realize its mission, Global Workers trains and supports the Global Workers Defender Network,
comprised of experienced human rights advocates in the migrant sending countries, to facilitate
employment law cases for migrant workers in partnership with advocates in the countries of employment.
Through this network, returned migrants who have suffered exploitation in the countries of employment
must no longer abandon their legal rights simply because they want to go home. The Defenders also
educate migrants as to their rights before they migrate and identify labor cases for workers who may not
have received assistance in the U.S. before they went home.
Case Facilitations
When a client, or prospective client, leaves the U.S., attorneys are faced with additional difficulties in
ensuring that the aggrieved worker remains an active part of the litigation. Too often communication
complications will result in a client missing a deadline and losing their hope for justice. Global Workers
addresses this challenge through the Defenders Network. Clients have increased access to justice when a
local human rights organization has the ability for more direct contact and communication to the abused
workers. Moreover, U.S. litigators can get key local support to make their transnational cases more
efficient and, ultimately, more effective.
How it Works
When a U.S. advocate needs assistance with a client who has returned to their home country, they contact
Global Workers. Once the exact assistance and scope has been identified, Global Workers contacts the
Defender in that clients’ area to determine if they can take the case. Once agreed all three parties sign a
Case Facilitation Contract. From that moment, the U.S. advocate works directly with the Defender. Global
Workers staff ensures the facilitation’s success by serving as back-up and offering follow-up. To ensure
the fluidity of the case facilitations, Global Workers signs contracts with the Defenders and USA
advocates so that the terms and conditions of the responsibilities and obligations are clear.
Geographic Coverage
Global Workers launched the Defenders Network in Southern Mexico and Guatemala to serve workers
who were employed in the U.S. Until we formally expand our programs to additional countries, we will
conduct trainings and facilitate cases outside of this geographic area on a case-by-case basis.
Examples of Global Workers Services:
When the Client is outside of the USA

The following examples are not exhaustive. The type of service and the method of execution will vary with
the attorney’s needs.
Appendix B Page 33
• Locating Clients: Global Workers Defenders can locate clients with whom you have lost touch or
find additional clients with similar claims.
• Interrogatories: Global Workers Defenders can either fully execute interrogatories or simply lend
its office phone for the USA advocates to conduct the interviews themselves.
• Depositions: Although Global Workers Defenders cannot conduct depositions (they are not US
attorneys) they can arrange for the USA advocate to conduct the deposition by telephone, video, or
arrange for a local on-site deposition.
• FLSA Opt-ins: Defenders can sign up additional clients for cases such as FLSA cases. This can be
just placing radio ads for workers to call the USA or doing outreach themselves and signing up
clients
• Visas: Defenders can accompany clients to visa interviews.
• Injured Workers: Defenders can assist injured workers find local medical assistance.
• Settlement/Award distributions: Defender services can range from advertising announcements to
filling out class claim forms or delivering checks.
**Please note Global Workers does not offer translation services.**
When the Client is in the USA but the Need is Outside the USA
• Witness Affidavits: To support trafficking claims, Global Workers Defenders can local and
interview witnesses.
• Document Collection: Global Workers Defenders can obtain birth certificates and other documents
only available in the country of origin.
Litigation/advocacy in the Migrant Home Countries

Global Workers Defenders are human rights attorneys with years of experience in litigation and
other advocacy. The Defenders can bring actions on behalf of your client in local courts for
violation of their rights in their home country. Some common examples of home country abuse
related to US employment include: threats for being engaged in lawsuits in the US or property
deeds confiscated as a guarantee on the return of guestworkers.
Why Working with Local Partners will Increase the Impact and Efficiency of Your Case
It is challenging for U.S. lawyers to gain the trust of clients abroad when they are unknown to the
communities. Teaming up with local partners who have geographic, political, and cultural knowledge of
the local terrain, will greatly increase the efficiency and impact of the case. Especially in remote rural
areas, people are more likely to trust someone from their own community before a complete outsider,
though well intentioned they may be. Local partners also offer continuity. They offer resources available to
the community years after any litigation may have concluded. With the additional education programs, our
local partners also educate workers before they go to the U.S. and inform workers where to go in the U.S.
for assistance in case of labor exploitation.
Additional Programs to Support U.S. attorneys

Global Workers has authored a Transnational Litigation Manual to assist U.S. attorneys with the legal
challenges they face when representing clients who have left the U.S. A manual on practical tips (from
sending money the most efficient way to making phone calls) is in development. Global Workers staff
lectures frequently on transnational litigation issues.
For more information please contact:
Global Workers Justice Alliance

113 University Place, 8th Fl., New York, NY 10003
tel. +1-917-238-0979, info@globalworkers.org
See our website at www.globalworkers.org
Appendix B Page 34

Representing Absentee Migrant Workers in U.S. Courts (Global Workers Justice Alliance, 2008)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Representing Absentee Migrant Workers in U.S. Courts (Global Workers Justice Alliance, 2008)

Uploaded by

Copyright:

Available Formats

Challenges in

Representing Absentee Migrant

Produced Nov., 2008

The mission of Global Workers is to combat worker exploitation by promoting portable

1.) Has a well-established residence outside of the United States;

2.) Has a realistic, logical reason to visit the United States;

ii.) Admissibility Bars

i.) Types of Parole

1.) A statement of who will provide medical care, transportation, housing,

iii.) Lawyers Sponsoring Clients for Parole Purposes

v.) Obtaining Assistance from Consular Officials

3. Conducting Depositions Abroad

a. Moving for Protective Orders

i.) Plaintiff had to file in the United States

ii.) Undue Burden or Hardship to Return to the United States

- Difficulty Obtaining Visas

- Economic hardship to apply for visa and travel internationally

iii.) Availability of Alternatives

Finally, plaintiff may want to illustrate the availability of satisfactory alternatives to an

In a rather amusing hearing regarding a discovery dispute, a judge emphasized that

iv.) Additional Arguments-Abuse of Discovery

Defendants are unlikely to be amenable to reasonable alternatives to in-person

b. Paying Expenses Related to Depositions Outside of the United States

i. Unlawful Practice of Law in a Foreign Country

ii. Administering the Oath

- Depositions Taken Under an Applicable Treaty or Convention

- Depositions Taken Under a Letter of Request

- Depositions Taken on Notice Before a Person Authorized to Administer Oaths

iv. Deposition Taken Before a Person Commissioned by the Court

ii. Recording Depositions

It may be beneficial for your client to appear in person. A personal appearance is

The burden of overcoming the presumption against extraterritoriality is on the party

2. Extraterritorial Application of Federal Laws

3. Qualified for Employment

The Global Workers Justice Alliance combats migrant worker exploitation

Global Workers Mission

Global Workers Defender Network

Examples of Global Workers Services:

When the Client is outside of the USA

Litigation/advocacy in the Migrant Home Countries

Additional Programs to Support U.S. attorneys

For more information please contact:

Global Workers Justice Alliance

You might also like