Guest Worker Visas and Their Impact on Industry: An Argument Against Their Limitation and For Stricter Controls on Employers

Part 3: Clearing a Path — Increasing the Availability of H-2 Visas as a Check on Abuse and Undocumented Immigration

The H-2 visa program breaks nonimmigrant labor into two categories: agricultural and nonagricultural. Agricultural visas are classified as H-2A visas while nonagricultural visas are classified as H-2B. The type of job eligible for either visa is generally labor intensive, though there are significant differences in the requirements of the employer for each. For example, H-2A employers are required to provide transportation, housing, and meals to their H-2A labor force, while H-2B employers generally are not. The term for each visa is relatively short. All H-2 visa holders are typically authorized to remain in the country legally for one year, but those visas may be extended for up to three years.^[1] During their time in the American workforce, most of an American-citizen worker’s rights and protections are extended to nonimmigrant laborers.^[2] While this appears facially sufficient, additional investigation exposes the reality: nonimmigrant laborers are often faced with extraneous circumstances significantly limiting the effectiveness of these protections.

Why Protections Are Ineffective

Both classifications of workers are only facially subject to the same level of protections as their U.S. citizen counterparts. For example, while worker’s compensation insurance is offered to H-2 workers at no cost to them, there is a strong disincentive for them to report injuries.^[3] This fear extends to general reporting of violations as well. In conversations with H-2 workers after returning to their native country, researchers have found significant reports of visa applicants paying for positions, suffering through substandard housing, and having deductions made for expenses the employer is responsible for.^[4] In one study, 58% of those interviewed reported paying a recruitment fee, 47% took out a loan to cover those expenses, 52% were not shown contracts containing the responsibilities for the job they were being recruited for, and 10% reported they paid a recruitment fee for a job that didn’t actually exist.^[5] If these statistics are representative of the entire population, over half of H-2 visa holders reach their jobs in a state of indentured servitude. ^[6] The conditions they face in America, however poor they may be, are likely better than the consequences of not being able to repay their lender upon returning to their home country.^[7]

Such circumstances foster conditions ripe for abuse. Since 2016, the Department of Labor (DOL) has successfully litigated requests for preliminary injunctions on two occasions, both for health and safety risks to workers.^[8] As an example of the conditions, one of the cases involved converted semi-trailers filled end to end with bunks. These trailers had insufficient venting, and temperatures inside often exceeded one hundred degrees Fahrenheit.^[9] This was only one of the many violations found at the worksite. These injunctions are the first two of their kind won by the DOL and enforced against employers.^[10] Unfortunately, these cases have stemmed from Department of Labor investigation and not reports from workers.^[11] Visa holders fear exercising the few protections given them to avoid jeopardizing their positions. While whistleblower protections do apply, the program’s track record of maintaining accountability from employers is poor.^[12] The DOL and United States Customs & Immigration Service (USCIS) have limited enforcement resources.^[13] Significant issues with the mischaracterization of job responsibilities on Labor Condition Applications exist.^[14] Due to manpower limitations, government agencies charged with protecting these guest workers must rely on the actual employees to report abuses.^[15] This is problematic. As mentioned previously, workers may have never been shown a contract for the position or even informed of their rights as a United States laborer.^[16] In many instances, nonimmigrant workers facing abuses simply do not realize they are being taken advantage of. Even if they do, they may have concerns outside the purview of those worker’s protections, such as the inability to pay back usurious loans, driving their decision to stay silent.

Is the Program Needed?

The considerable amount of abuse going on inside the program leads to the questions of whether the program is needed, whether employers are using it in the way intended, and if it is currently effective in accomplishing its goals.

The question of whether there is a need for this program is a resounding yes. For example, there are 2.6 million agricultural jobs in the United States.^[17] Despite the availability of an unlimited number of H-2A visas, some estimates place the percentage of undocumented workers in those positions as high as 70%.^[18] While employers do use tactics to limit the number of United States citizens that will apply, a third of those workers have immigration statuses ranging from citizen to permanent resident.^[19] While there are Americans willing to do these jobs, there are not enough of them to fill out these low wage, oftentimes backbreaking positions.^[20] Evidence of the rapid growth of the uncapped H-2A program is also suggestive of the need. Over a decade from 2006-2016 jobs certified by the DOL nearly tripled, growing from 64,100 to 165,700.^[21] That number is expected to continue to grow.^[22] H-2B visas regularly reach their cap in the first few days applications are eligible to be submitted. Last year demand was so great that President Trump increased the H-2B cap by 15,000 visas through an Executive Order.^[23] Each visa has a mandate to first recruit Americans and to always hire any American applicant until half of the contract is complete. ^[24] Even with these directives holding a position for them, Americans do not want these types of jobs in large numbers.^[25] This is especially true when the economy is strong and unemployment is low.^[26] Despite technological advances that have reduced the need for manual laborers, especially in agriculture, H-2 eligible fields still require workers to fill open positions.^[27]

The need to fill positions that American citizens did not want or have the available manpower to fill was the initial purpose of the guestworker program. Initially, these programs began in the early twentieth century with the passage of the Immigration Act of 1917 to compensate for the workforce that had been drafted to fight in World War I.^[28] This early predecessor of H-2 visas was discontinued in 1922, but was revisited in the 1940’s. The outbreak of World War II again created a labor shortage on American farms. Even after the war’s end, some form of a guest worker program has been in existence ever since. These two early work authorizations agreements between the United States and Mexican governments are both referred to as the “Bracero” program.^[29] The Bracero program continued until Congress failed to renew its authorization in 1964 amid heightened racial and economic tensions.^[30] At the Bracero program’s height, nearly half-a-million guest workers were working in American food production.^[31] Despite Congress’s failure to act, guest worker programs remained authorized by the 1952 Immigration and Naturalization Act (INA). Following the end to the Bracero program in 1964, use of nonimmigrant labor became more tightly controlled with the passage of the 1965 amendments to the INA.^[32] By this time, the problem of undocumented immigrants remaining in the country after the work had concluded was evident. In 1978, President Jimmy Carter commissioned studies to make recommendations for dealing with this issue, particularly whether expanding the guest worker programs was a good way to counteract the ever-growing stream of undocumented immigrants coming into and remaining in the country.^[33] This commissions made several recommendations, such as granting amnesty to current undocumented immigrants, but expansion was strongly scrutinized and ultimately not recommended. Changes eventually occurred, though, and nonimmigrant programs morphed into their current classifications of H-2A and H-2B in 1987.^[34] These programs have undergone several amendments since—the last major revision in 2015.^[35]

Both H-2 visa classifications issued have either increased in most years or, in the case of H-2B visas, met their statutorily imposed cap.^[36] Despite this growth, evidence of such large numbers of undocumented workers participating in the agricultural workforce could suggests that employers are not utilizing the program as intended. Statistics suggest that 5% of the workforce could be comprised of workers that would otherwise be eligible for one of the H-2 visa types.^[37] Part of the intent in authorizing guest worker programs was to curb the influx of undocumented workers coming into the United States.^[38] An initiative beginning with the 1965 version of the INA sought to crack down on undocumented workers by repatriating them to their country of origin. The H visas were meant to offset the potential loss of eligible and willing labor for industries dependent on immigrants to fill their open positions.^[39] This is not presently working as originally intended. Undocumented immigrants remain a significant percentage of the American workforce.^[40]

The statistics demonstrate that the H-2 visa program is failing to meet its intended purpose. Employers are using it to supplement labor forces largely made up of undocumented immigrants. These visas were aimed at phasing out undocumented labor, yet as a percentage of the workforce it exploded in the 1990’s and currently remains steady.^[41] Placing these issues at the forefront of any legislative solution should be an important part of any proposal.

Overcoming Obstacles in Proposing Legislation

Some of the obstacles identified in a report requested by Congress in 1978 and issued to President Reagan in the early 1980’s remain. This report, authored by the Select Commission on Immigration and Refugee Policy over a period of three years between 1978 and 1981, identified several factors associated with the roadblocks blocking an expansion of the current H-2 visa program.^[42] In subsequent testimony before Congress the chair of the commission, Reverend Theodore Hesburgh, gave several reasons for not including or expanding any guest worker programs in upcoming immigration legislation. His arguments against included the following:

• A large, temporary worker program “would have to have some limits which would have to be enforced. It wouldn’t be a completely open program.”
• “It is difficult to turn off such a program once it gets started.”
• “A large program would build a dependency on foreign labor in certain sectors of the economy.”
• “Certain jobs would be identified with foreigners”
• “A second class of aliens would be established in our country who are not fully protected by the law and its entitlements and who could not participate effectively in mainstream institutions.”
• Without the strict enforcement of employer sanctions against hiring other illegal immigrants elsewhere in the economy, a temporary worker program “would stimulate new migration pressures in the long run, and again we [would] have the specter of law disrespected as we have now.”^[43]

Some of these objections remain, but others have at least been partially addressed if not resolved. For example, many of the protections enumerated in the Fair Labor Standards Act have been extended to H-2 visa holders.^[44] This has remained true. Employers were also made to pay the same taxes on H-2 visa laborers as their American counterparts to protect the hiring of Americans.^[45] Despite these attempts at creating parity, the second class of citizens the Reverend alluded to was already present when he made those comments. Undocumented aliens were in the United States in 1981 and still remain outside the protections of the law. This is especially true in regard to worker protections. Current requirements to qualify for and actually receive H-2 visa laborers are cumbersome and slow-moving.^[46] Employers working in a seasonal capacity are severely limited by time and evidence suggests Americans do not want the types of jobs eligible for H-2 labor.^[47] While the speed of the process is not the only limitation affecting an employer’s choice to seek out undocumented labor, it is a piece of it that needs addressed.

These jobs are already associated with foreigners. There has been a gradual decrease of Americans willing to do labor intensive occupations such as farm and landscaping work.^[48] These industries have not grown dependent on foreign labor because of a nonimmigrant labor program, but due to an abundance of easier jobs requiring no exposure to harsh weather conditions that also pay better.^[49] Government programs that keep the price of commodities artificially low likely have an impact on the ability of farmers to pay what the market would demand for an American workforce to take on the hardships associated with farm labor. The jobs associated with H-2 labor did not become synonymous with an immigrant labor force in spite of the economy, but because of it. If labor is unable to be supplied by a traditional workforce—or the employers are unwilling or unable to pay what the market demands— an unregulated illegal labor market is likely to form.^[50] With suggestions that certain industries are comprised of up to 70% undocumented laborers, taking steps to create an adequate avenue to supply legal labor is part of the solution to reducing this number.

The other significant part of the solution is enforcement. The Reverend was right about the need to police the employers that abuse undocumented labor. The system has traditionally sought to punish the immigrant and not the entity employing them.^[51] Undocumented immigration is a symptom of the employer’s willingness to hire them. Immigrants are travelling to the United States looking for a better life. As it stands now, the legal path toward acquiring an H-2 visa amounts to indentured servitude. The immigrant likely has had to pay fees, bribes, or both to unscrupulous recruiters. The funds used to make these payments were likely secured at usurious interest rates in their home country.^[52] They are tied to a single employer, and if they lose their job must return home.^[53] As noted above, this creates a docile workforce that is scared to report abuses. For a workable solution, this part of the issue must be addressed as well.

Over the last forty years, technology has made the world a smaller place. Challenges of scale that created difficulties in processing, admitting, and tracking large numbers of H-2 visa applicants have been made less complex by major technological advances. Utilizing some of these solutions can help alleviate the bottleneck at the border, help hold employers accountable, and limit the abuses of recruiters in home countries.

Fixing the Faults

Pieces of the puzzle are already in place. There is already searchable database of eligible workers provided by the United States that allows employment eligibility confirmation through a website. This system is known as E-Verify. E-Verify allows employers to check the work status of potential employees during the hiring process, but they must voluntarily enroll in the program.^[54] This system could be a useful tool in holding employers that use undocumented immigrants as labor accountable. The system is government sponsored, easily accessible, and free to use. Its current limitation is its optionality. Requiring mandatory E-Verify as a hiring requirement makes circumventing the law more difficult. While mandatory E-Verify is not a total solution, it is a piece of the puzzle and is already being debated in the halls of Congress.^[55]

In addition to E-Verify, ways to hold employers accountable must be implemented in concert. The easiest and most cost-effective way to create that accountability is by fostering an environment that encourages and does not create penalties for reporting abuses. Instead of forcing visa holders to only work for the sponsoring employer, let them have freedom to choose their employer and extend them the right to organize. Instead of penalizing undocumented laborers by deportation, fold them into the program. Grant them a temporary worker visa and allow them to continue working. By allowing these workers the right to organize, they can protect their interests more fully against alternative labor sources and unscrupulous employers. In conjunction with this, more field agents should be placed throughout the country with an increased focus on site inspections. This can be accomplished by assigning agents territories, setting a per capita limit per agent by territory population, and eliminating the need for agents to report to a central office maximizing their time on site.

Finally, recruiters must be removed from the equation. Creating a process that is friendly to the individual is paramount. By taking advantage of a constantly increasing percentage of the world population with smartphones and internet access, this can be achieved.^[56] Designing websites for visa applications to be mobile friendly and limiting the information required to begin the visa process could help applicants avoid becoming indebted to recruiters. Freeing visa holders from the chains of high interest indebtedness and the very real threat of violence if they fail to repay helps further the creation of an environment where abuses are more likely to be reported.

While these steps may not make up the entirety of effective reform, they would represent a major step toward protecting labor—both foreign and American—while encouraging legal hiring practices. Under such a program, tax revenues are increased, wages avoid being artificially deflated by undocumented labor, and abuses of human beings are less likely to occur. Overall, this would benefit the country as a whole.

1. Andorra Bruno, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, Congressional Research Service (Nov. 14, 2018), https://fas.org/sgp/crs/homesec/R44849.pdf. ↑
2. Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas), United States Department of Labor (last accessed Nov. 14, 2018), https://webapps.dol.gov/elaws/elg/taw.htm#EmplRights. ↑
3. Recruitment Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and Recommendations for Change, Centro de los Derechos del Migrante, Inc. (last accessed Nov. 14, 2018), http://www.cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf. ↑
4. Id. ↑
5. Id. ↑
6. Supra 3. ↑
7. Vulnerabilities of and Protections Needed for Temporary Workers, : Farm Workers in Mexico and the United States, Government Accountability Office (last accessed Nov. 14, 2018), https://migrationfiles.ucdavis.edu/uploads/farm-labor/2017/11/28/el-hodiri-vulnerabilities-of-and-protections-needed-for-temporary-workers.pdf. ↑
8. U.S. Department of Labor Obtains Historic Preliminary Injunction Regarding Entities Accused of Providing Dangerous Substandard Living Conditions to Workers, Department of Labor (last accessed Nov. 14, 2018), https://www.dol.gov/newsroom/releases/whd/whd20170606. ↑
9. Lisa Burden, For 2^nd time, DOL obtains injunction for alleged H-2A visa abuse, HRDIVE (last accessed Nov. 14, 2018), https://www.hrdive.com/news/for-2nd-time-dol-obtains-injunction-for-alleged-h-2a-visa-abuse/530290/. ↑
10. Id. ↑
11. Supra 8. ↑
12. Katherine Harris, George Mason Public Policy Institute, Student Research: How the H2 Visa Program Leads to Labor Abuses, 4 Inside TraCCC 5 (last accessed Nov. 14, 2018), http://traccc.gmu.edu/wp-content/uploads/2013/12/INSIDE_TraCCC_04.pdf. ↑
13. Marsha Chien, When Two Laws are Better than One: Protecting the Rights of Migrant Workers, 28 Berkeley J. Int’l L. 15 (2010). Available at: http://scholarship.law.berkeley.edu/bjil/vol28/iss1/2. ↑
14. United States House of Representatives, Hearing before the Committee on Education and Labor, Do Federal Programs Ensure U.S. Workers are Recruited First Before Employees Hire from Abroad?, 20, (last accessed Nov. 14, 2018), https://www.gpo.gov/fdsys/pkg/CHRG-110hhrg41982/html/CHRG-110hhrg41982.htm. ↑
15. Id. ↑
16. Supra 3. ↑
17. Economic Research Service, Ag and Food Sector and the Economy, United States Department of Agriculture (last accessed Nov. 14, 2018), https://www.ers.usda.gov/data-products/ag-and-food-statistics-charting-the-essentials/ag-and-food-sectors-and-the-economy/. ↑
18. Selected Statistics on Farmworkers, Farmworker Justice (last accessed Nov. 14, 2018), https://www.farmworkerjustice.org/sites/default/files/NAWS%20data%20factsht%201-13-15FINAL.pdf. ↑
19. Id. ↑
20. Phillip Martin, Economic Policy Institute, The H-2A farm guestworker programs expanding rapidly: Here are the numbers you need to know, Working Economics Blog, https://www.epi.org/blog/h-2a-farm-guestworker-program-expanding-rapidly/. ↑
21. Id. ↑
22. Id. ↑
23. Roy Maurer, H-2B Visa Demand Again Far Surpasses Annual Cap, Society for Human Resource Management (last accessed Nov. 14, 2018), https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/h2b-visa-demand-far-surpasses-annual-cap.aspx. ↑
24. 29 CFR 500 et seq. ↑
25. The National Agricultural Workers Survey, United States Department of Labor, Employment and Training Administration (last accessed Nov. 14, 2018), https://www.doleta.gov/agworker/report9/chapter1.cfm. ↑
26. Pew Research Center, The State of American Jobs: How the shifting economic landscape is reshaping work and society and affecting the way people think about the skills and training they need to get ahead, http://www.pewsocialtrends.org/2016/10/06/the-state-of-american-jobs/ (last accessed Nov. 14, 2018). ↑
27. Supra 17. ↑
28. Vernon Briggs Jr., Guestworker Programs: Lessons from the Past and Warnings for the Future (2004), Center for Immigration Studies (last accessed Nov. 14, 2018), https://cis.org/Guestworker-Programs. ↑
29. Id. ↑
30. Id. ↑
31. Id. ↑
32. Id. ↑
33. Id. ↑
34. Id. ↑
35. Id. ↑
36. Worldwide, H1B, H2A, and H2B Visa Issuances Fiscal Years 2012-2017, United States Department of State, Bureau of Consular Affairs (last accessed Nov. 14, 2018), https://travel.state.gov/content/dam/visas/Statistics/Graphs/H%20VisasWorldwide%20-%20FY2017.pdf. ↑
37. Mary Jo Dudley, These U.S. industries can’t work without illegal immigrants, CBS MoneyWatch (last accessed Nov. 14, 2018). https://www.cbsnews.com/news/illegal-immigrants-us-economy-farm-workers-taxes/. ↑
38. Supra 28. ↑
39. Id. ↑
40. Supra 37. ↑
41. Id. ↑
42. U.S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners, XV, Select Commission on Immigration and Refugee Policy (last accessed Nov. 14, 2018), https://files.eric.ed.gov/fulltext/ED211612.pdf. ↑
43. Id. at XIV. ↑
44. 29 CFR §500.60. ↑
45. Foreign Agricultural Workers on H-2A Visas, Internal Revenue Service (last accessed Nov. 14, 2018), https://www.irs.gov/individuals/international-taxpayers/foreign-agricultural-workers. ↑
46. Supra 1. ↑
47. Small Business Committee, H-2B Visa Program Myths versus Fact, (last accessed Nov. 14, 2018), https://smallbusiness.house.gov/uploadedfiles/h2b_visa_program_myths_versus_fact_final.pdf. ↑
48. Farm Workers & Immigration, National Farm Worker Ministry (last accessed Nov. 18, 2018), http://nfwm.org/resources/farm-workers-immigration/. ↑
49. Niall McCarthy, The Massive Wage Gap Between U.S. Citizens And Immigrants, Forbes (last accessed Nov. 14, 2018), https://www.forbes.com/sites/niallmccarthy/2017/03/07/the-massive-wage-gap-between-u-s-citizens-and-immigrants-infographic/#329618cd3e65. ↑
50. Statistics on U.S. Immigration: An Assessment of Data Needs for Future Research, 42-43, The National Academies of Sciences Engineering Medicine (last accessed Nov. 15, 2018), https://www.nap.edu/read/4942/chapter/6#41. ↑
51. Spencer S. Hsu and Kari Lydersen, Illegal Hiring is Rarely Penalized, Washington Post (Nov. 15, 2018), http://www.washingtonpost.com/wp-dyn/content/article/2006/06/18/AR2006061800613.html?noredirect=on. ↑
52. Supra 3. ↑
53. Id. ↑
54. E-Verify Quick Reference Guide for E-Verify Enrollment, USCIS (last accessed Nov. 14, 2018), https://www.uscis.gov/sites/default/files/USCIS/E-Verify/archive/guide-enrollment.pdf. ↑
55. Laura Francis, Mandatory E-Verify for Employers Getting Closer to Reality, Bloomberg Law (last accessed Nov. 18, 2018), https://www.bna.com/mandatory-everify-employers-n73014481338/. ↑
56. See Smartphone penetration to reach 66% in 2018, Zenith Media (last accessed Nov. 18, 2018), https://www.zenithmedia.com/smartphone-penetration-reach-66-2018/. ↑