Worker Advocates Argue H-2 Visa Programs Need Serious Reforms

Roy Maurer By Roy Maurer July 27, 2022
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migrant farm workers

​Foreign guest workers who use the H-2A and H-2B temporary visa programs need better labor protections, according to experts who testified before the House Subcommittee on Workforce Protections on July 20.

"Workers apply for H-2 visas to achieve economic opportunity, to escape poor working conditions, and, ultimately, with a hope that their employment can lead to a better life in America," said Rep. Alma Adams, D-N.C., who chaired the hearing. "Regrettably, the programs too often fail to deliver on these goals."

Daniel Costa, director of immigration law and policy research at the Economic Policy Institute in Washington, D.C., said that the U.S. government is failing to meet basic labor standards and provide basic rights to workers in the growing H-2A and H-2B visa programs. The H-2A visa program—the main focus of the hearing—is for seasonal jobs in agriculture, while the H-2B program is for seasonal jobs outside of agriculture.

"Although migrants coming to the United States through temporary work visa programs are legally authorized to work, they are among the most exploited laborers in the U.S. workforce because employer control of their visa status leaves many powerless to defend and uphold their rights," Costa said. The flaws in the H-2 visa programs are systemic and structural, he said, listing abuses like charging workers exorbitant recruitment fees, keeping them in debt bondage, underpaying workers and allowing abuses to occur, as seen in the Operation Blooming Onion case.  

Rep. Fred Keller, R-Pa., characterized the hearing as Democrats "missing the forest for the trees." He said that while the H-2 programs do need reforms—especially streamlining regulations for efficiency—discussing the relatively small visa programs "makes little sense" as the growing number of undocumented workers being hired outside legal channels undermines H-2 guest workers and the organizations that employ them.

Leon Sequeira, an attorney representing employers of H-2A and H-2B workers, and a former U.S. Department of Labor (DOL) official serving under President George W. Bush, defended the programs, asserting that H-2A and H-2B workers "may be the most protected workers in the entire economy," due to all the regulations pertaining to their employment.

"Despite efforts, there will be some employers who do not follow the requirements of these programs, and when that happens no one will dispute that those employers should be held liable for violations," he said. "But DOL enforcement data shows that only a small fraction of employers violate requirements and that most violations are technical paperwork violations."

Growth of Guest-Worker Programs

The H-2 temporary work visa programs are meant to help U.S. employers fill vacant jobs, especially when there is a shortage of local workers interested in those jobs.

The H-2A program is uncapped, and visas are valid for up to one year and can sometimes be renewed. H-2B visas are capped at 66,000 per year, for the duration of the job, with possible extensions up to three years.

Costa said that despite the popular narrative that the Trump administration "cracked down" and limited the number of people immigrating to the U.S., temporary worker programs grew during the Trump years. The number of guest workers in the U.S. grew by 13 percent between 2016—the last year of the Obama administration—and 2019, before the COVID-19 pandemic. He pointed out that the expansion of the programs is part of a longer-term trend dating back 30 years to when they were first created in the 1980s.

The combined number of H-2A and H-2B visas issued in fiscal year 2021 was just under 353,000. The size of the H-2A program has more than tripled since 2012, from 65,000 visas issued then to nearly 258,000 in 2021. The number of H-2B workers is set to reach a new high this year as well, due to the addition of 55,000 supplemental visas.

Lack of Protection

Costa and others testified about several areas of potential abuse of guest workers in the U.S., beginning even before they arrive. "Many are required to pay exorbitant fees to labor recruiters to secure U.S. employment opportunities, even though such fees are usually illegal," he said. "Those fees leave them indebted to recruiters or third-party lenders, which can result in a form of debt bondage." He added that some workers may arrive in the country and find out the jobs they were promised don't exist, and in some cases become victims of human trafficking.

He said that there is abundant evidence that temporary guest workers are often legally underpaid or suffer from other violations of labor laws. This has happened partly because the number of Wage and Hour Department and other DOL investigations of H-2 employers has declined sharply since 2000. And when investigations are conducted, wage and hour violations are found in 70 percent of cases, Costa said. Data shows that wage theft is a massive problem in the major H-2B industries as well, he said.

Egregious cases of abuse, such as those found in the Operation Blooming Onion investigation, present tremendous dangers for farm workers and H-2A guest workers, said Teresa Romero, president of the United Farm Workers union. "The allegations in the Blooming Onion case are devastating and include criminal charges for multiple deaths, rape and forced labor," she said. "The Blooming Onion case demonstrates not just the inherent flaws of the H-2A program, but also the government's inability to effectively enforce the modest H-2A protections that do exist."

Romero said that temporary foreign farmworkers fear retaliation and deportation if they speak up about wage theft, workplace abuses or other substandard working conditions because of their vulnerable immigration status.

Defense of the H-2 Visa

Sequeira pushed back on the allegations, saying that while the H-2 programs "are far from perfect," they are a critical lifeline to thousands of farms and businesses across the country with a temporary or seasonal need for labor each year.

"The H-2A and H-2B guest-worker programs are highly regulated and provide good jobs enabling workers to learn skills, gain experience and earn a significant amount of money to support their families abroad," he said.

Sequeira added that H-2 guest workers are paid wages set and approved by the DOL and are offered numerous benefits and protections that U.S. workers in the same roles are not required to receive, such as free housing and daily transportation to and from the worksite.

"Some critics even claim that H-2 workers are somehow trapped and cannot leave their employer, but such claims are simply not true," he said. "Guest workers are free to change from one H-2 employer to another, and thousands do so every year. No H-2A or H-2B guest worker is required to continue working some place they do not want to work."

As for enforcement, Sequeira said that analysis of DOL data reveals that a "relatively small number of employers is responsible for the vast majority of violations. When that enforcement data is placed in context, it is readily apparent that the overwhelming number of employers follow the law, treat their employees with respect, and provide the pay and benefits those employees are due."

He added that the major frustration among his clients is that they "go through the trouble to legally hire guest workers through these programs, pay prevailing wages, and end up being audited by the DOL and nitpicked over small violations, while competitors who hire undocumented workers are usually not targeted for enforcement. That's where the imbalance lies."

Solutions

Romero said that there are several pieces of legislation pending in Congress that would address some of the H-2A program's flaws, including the Farm Workforce Modernization Act, a bipartisan bill that includes recruitment protections for H-2A guest workers; coverage of those workers by the Migrant and Seasonal Agricultural Worker Protection Act; and a path to lawful permanent residency. It also lays out a path to legal status for undocumented farmworkers, reforms the H-2A visa program to provide more flexibility for employers and requires nationwide E-Verify use for all agricultural employment once legalization has been phased in.

She also called for the Biden administration to introduce a federal heat standard to protect farmworkers from heat-related death and illness and new rulemaking to substantially reform the H-2A program.

Regarding the H-2B program, Costa recommended Congress pass the Seasonal Worker Solidarity Act, which would improve the process for recruitment of U.S. workers, improve and enhance enforcement of labor standards, and provide H-2B workers with a path to permanent residence that they control.

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