Foreign guest workers using the H-2A and H-2B temporary visa programs need better labor protections, according to experts who testified before the House Workforce Protection Subcommittee on July 20.
“Workers apply for H-2 visas to gain economic opportunity, to escape poor working conditions, and ultimately in the hope that their jobs can lead to a better life in America,” Rep. Alma Adams said. , DN.C., who presided over the hearing. “Unfortunately, programs too often fail to achieve these goals.”
Daniel Costa, director of immigration law and policy research at the Economic Policy Institute in Washington, D.C., said the U.S. government is failing to uphold core labor standards and guarantee basic rights for workers. workers in the growing H-2A and H-2B visa programs. . The H-2A visa program — the primary 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 permitted to work, they are among the most exploited workers in the American workforce because employer control of their visa status leaves many people powerless to defend and enforce their rights,” Costa said. . The flaws in the H-2 visa programs are systemic and structural, he said, listing abuses such as charging workers exorbitant recruitment fees, keeping them in debt bondage, underpaying workers and allowing abuse to occur, as seen in the Operation Blooming Onion Case.
Rep. Fred Keller, R-Pa., called the hearing Democrats “missing the forest for the trees.” He said while H-2 programs need reform — especially streamlining regulations for efficiency — discussing the relatively small visa programs “doesn’t make sense” because the growing number of undocumented workers 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, saying that H-2B workers 2A and H-2B “may be the most protected workers in the entire economy”, due to all the regulations surrounding their employment.
“Despite best efforts, some employers will not comply with the requirements of these programs, and when that happens, no one will dispute that these employers should be held accountable for the violations,” he said. “But DOL enforcement data shows that only a small fraction of employers violate the requirements, and most violations are violations of technical paperwork.”
Growth of guest worker programs
H-2 temporary work visa programs are intended to help U.S. employers fill job vacancies, especially when there is a shortage of local workers interested in those jobs.
The H-2A program is not capped 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 employment, 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 United States, temporary worker programs grew during the Trump years. The number of guest workers in the United States increased by 13% 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 that dates back 30 years, 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 to nearly 258,000 in 2021. The number of H-2B workers is also expected to hit a new high this year, due to the addition of 55,000 more visas.
Lack of protection
Costa and others testified to several areas of potential abuse by guest workers in the United States, beginning even before their arrival. “Many are required to pay exorbitant fees to labor recruiters to obtain employment opportunities in the United States, even though such fees are generally illegal,” he said. “These 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 that the jobs they were promised do not exist and in some cases become victims of human trafficking.
He said there is ample evidence that temporary guest workers are often legally underpaid or suffer other labor rights violations. This has happened in part 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, violations of wages and hours are found in 70% of cases, Costa said. Data shows that wage theft is also a major problem in major H-2B industries, he said.
Gross cases of abuse, such as those uncovered in the Operation Blooming Onion investigation, pose enormous dangers to 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 only the inherent flaws of the H-2A program, but also the government’s failure to effectively enforce the modest H-2A protections that exist.”
Romero said temporary foreign farm workers fear retaliation and deportation if they report wage theft, workplace abuse or other substandard working conditions because of their immigration status. vulnerable.
H-2 Visa Defense
Sequeira pushed back against the allegations, saying that while H-2 programs “are far from perfect,” they are an essential lifeline for thousands of farms and businesses across the country with temporary or seasonal need. of labor each year.
“The H-2A and H-2B guest worker programs are highly regulated and provide good jobs for workers to learn skills, gain experience, and earn a significant amount of money to support themselves. of their families abroad,” he said.
Sequeira added that H-2 guest workers receive wages set and approved by the DOL and receive many 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 site.
“Some critics even claim that H-2 workers are somehow trapped and can’t leave their employers, but such claims are simply not true,” he said. “Guest workers are free to move from one H-2 employer to another, and thousands do so each year. No H-2A or H-2B guest worker is required to continue working in a location where they doesn’t want to work.”
Regarding enforcement, Sequeira said analysis of DOL data reveals that a “relatively small number of employers are responsible for the vast majority of violations. When this enforcement data is put into context, it is evident that the overwhelming number of employers are following the law, treating their employees with respect and paying them the wages and benefits they are owed.”
He added that his clients’ main frustration is that they “go to the trouble of hiring guest workers legally through these programs, pay the going wages, and end up being audited by the DOL and pinched for small violations, while competitors who hire undocumented workers are generally not targeted for enforcement.Therein lies the imbalance.
Romero said there are several bills pending in Congress that would address some of the flaws of the H-2A program, including the Farm Workforce Modernization Act, a bipartisan bill that includes recruiting protections for H-2A guest workers; the coverage of these workers by the law on the protection of migrant and seasonal agricultural workers; and a path to lawful permanent residence. It also paves the way for legal status for undocumented agricultural workers, reforms the H-2A visa program to provide more flexibility for employers, and mandates nationwide use of E-Verify for all agricultural jobs. once progressive legalization.
She also called on the Biden administration to introduce a federal heat standard to protect farm workers from heat-related deaths and illnesses and new rules to fundamentally reform the H-2A program.
Regarding the H-2B program, Costa recommended that Congress pass the Seasonal Worker Solidarity Act, which would improve the hiring process for American workers, improve and strengthen labor standards enforcement, and provide H-2B workers a path to permanent residency that they control.