H-2 Visa: Modern Slavery

The implications of the United States’ H-2 visa program.

Photo by Icars (Flickr).

As usual, immigration is a trending topic this election season.  Most recently, GOP candidate Donald Trump has created many headlines because of his extreme stance on immigration reform.  Mr. Trump has emphasized that he wants to “make America great again,” by providing Americans with jobs and has proclaimed that he will be “the greatest jobs president that God ever created.”

On his campaign website, Mr. Trump states, “Requirement to hire American workers first. Too many visas, like the H-1B, have no such requirement.  In the year 2015, with 92 million Americans outside the workforce and incomes collapsing, we need companies to hire from the domestic pool of unemployed.  Petitions for workers should be mailed to the unemployment office, not USCIS.”

Although Mr. Trump seems to want to provide Americans with as many jobs as possible, a recent report demonstrated that his own companies are actively acquiring workers through the H-2B program.  Since 2000, Trump owned companies have sought at least 1,100 workers through this program for jobs such as waiters, cooks, and janitors.  Instead of working with job placement centers, Mr. Trump’s companies preferred to petition USCIS for workers and paid them $10-$12 an hour.

The H-2 Visa program was born out of the Bracero program in the 1960’s.  It was later split up to H-2A and H-2B visas.

 Since its inception, the United States of America has depended on Foreign Nationals to provide cheap labor and maximize its profits—beginning with slavery, then to Asian migrants, the Bracero program, and now the H-2 visa program.  Throughout its history, the H-2 Visa program has been often criticized for its lack of oversight and upholding of the standards set by U.S. Citizen and Immigration Services (USCIS) and the Department of Labor (DOL).  This program has become known for the rampant abuse of its participants and has been equated to modern slavery by some.  The H-2 Visa program was born out of the Bracero program in the 1960’s.  It was later split up to H-2A and H-2B visas.  H-2A visas apply to agricultural workers and the H-2B applies to every other type of “low skilled” laborer.

To qualify for H-2A nonimmigrant classification, the petitioner (farmer) must: (1)  offer a temporary or seasonal job; (2) “demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work”; (3) “show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers”; and (4) submit a single valid temporary labor certification from the U.S. Department of Labor.

The farmers who apply for this program can only pick laborers from a list of countries that has been published by USCIS (majority of them being third world countries).  The visa is usually valid for only one year and can only be renewed twice, for a maximum of three years.  Employers must also provide housing at no cost to the employees as well as three meals a day, or a kitchen where employees can make their own.

Wages offered by H-2A growers must be the highest of: (a) the local labor market’s “prevailing wage” for a particular crop as determined by DOL and state agencies; (b) the state or federal minimum wage; or (c) the “adverse effect wage rate” (AEWR), an hourly wage determined by DOL/LCA for each state based on the USDA’s annual Farm Labor Survey of average regional hourly wages for nonsupervisory crop and livestock workers. In most cases, the AEWR is the highest rate.  There is a herder exemption which allows employers to only pay their workers $750 a month, regardless of the amount of hours they work.  This averages out to about $2-$3 an hour.

Transportation costs incurred by the workers to arrive at the place of employment must be reimbursed by the employer after workers complete half the season.  Employers must pay the cost of returning home for those who complete the full season.

Opponents argue that the temporary workers are constantly being mistreated by their employers.

Opponents argue abuse of the participants in this program, beginning in their native countries.  Many employers in the United States use recruiters to get the workers they need.  These recruiters take advantage of the desperation that many of these applicants are experiencing in their native country.  In many situations, the recruiters charge  hundreds of dollars just to put the applicant’s name on the list of eligible workers.  Once the applicant has been picked as a worker, the recruiter will charge him as much as   $11,000 in order to give him the visa and his passport.  Many of these workers are desperate and in dire need of   income.  This, along with the recruiter’s embellishment of how much the applicants will be getting paid as temporary workers convinces these migrants to do whatever they can to get into the program; sometimes even using their house or property as collateral to pay for their traveling costs.  Therefore, before immigrant workers even step foot on U.S. soil, many  of these workers are already in deep debt.  Although U.S. laws do provide an  obligation for employers to reimburse workers for their travel and visa costs, in practice it is rare that guest workers are fully reimbursed.  Most struggle to repay their debt, while interest accrues.  These obstacles are worsened when employers fail to offer as many hours of work as promised, which is common.

Once here, opponents argue that the temporary workers are constantly being mistreated by their employers.  Some allege that employers have figured out ways to duck the standards set by the government and pay these temporary workers even less than they are already required to.  The most common way employers attempt to save money is by paying their workers on a piece rate, rather than on an hourly rate which they are required to do.   Although a piece rate might be more beneficial to workers who produce faster, the majority, if not all, of the workers cannot produce enough in order to equate what they would be earning if they were  paid at an hourly rate.  Given the type of arduous labor these workers are required to do, they cannot keep the same pace for extended periods of time.  It has also been reported that some employers have falsified records, reported that less hours were worked to increase the average wage, and required workers to pick a certain amount of produce  in order to get paid that day.

Similarly, the living conditions  provided are often unsanitary and substandard.  Much of the housing that is provided  is in rural areas and lacks basic commodities such as a phone line, heating/air conditioning, and even mattresses.  In some cases, these houses are  infested with rodents and structurally hazardous conditions.  The government does not provide  inspectors to ensure  the “houses” are maintained  to the written standards.  Employers take advantage of this and provide the bare minimum, and in some cases, even less.

These types of abuses are prevalent in the H-2 visa program leading to lawsuits.

In the past few years there have been several cases where H-2A workers have sought legal relief from the abuse they were enduring and forced their employer to pay them.  The most important case came from  the United States District Court of the Western District of Arkansas, in 2011.  In Perez-Benites v. Candy Brand, LLC., the court ordered the employer to pay its H-2A workers for back pay.  The company  settled  for $1.5 million to be dispersed among approximately 1,800 workers.

Similar situations have been found in  other major cases.  In Camayo, the employer threatened his workers with deportation if they complained about their wages and living conditions.  While in Rivera, the employer also withheld wages and was ordered to pay them.

As stated earlier, the H-2B program is the equivalent of the H-2A but for non-agricultural “low skilled” workers.  Like the H-2A visa program, the H-2B is also filled with reports of abuse.  A recent $20 million settlement between a maritime company and workers it recruited through the H-2B program highlights the abuses and atrocious conditions these workers are forced to endure.  The immigrant workers in this case were forced to live in packed segregated quarters, which they were charged $1,000 a month for, were given the worst jobs at the site, and were constantly verbally abused.  These types of abuses are prevalent in the H-2 visa program.

The H-2 visa program is one of the areas in which the United States could begin its reform.

It is commonly said that our entire immigration system is broken.  It is also common sense that it would be nearly impossible to pass one massive immigration reform bill.  Instead, the U.S. Government needs to address the most pressing issues first.  The H-2 visa program is one of the areas in which the United States could begin its reform.  This program is heavily affected by undocumented workers who are easier and even cheaper to get.  Many undocumented workers would prefer to come legally through this program, but many cannot due to the lack of requests from U.S. employers and even more are afraid to do so because of the stories of abuse they have heard.  If the U.S.  makes the process of hiring workers through this program easier, then perhaps more people would be able to come here legally.  Certain regulatory features must also be included in order to ensure the safety of the participants of this program.  Random inspections must be implemented in order ensure that employers are providing their workers with everything they are supposed to as well as to ensure that the employees are being paid the amount stated in their contracts.  The employees must also be made aware of the legal remedies available to them, if abused, so that they may fight back against the oppressive system they have been put in.

The United States is a country built by immigrants and it continues to be seen as a beacon of hope and opportunity for those living in dismal situations.  Unfortunately, the United States has also been seen as a country that is known for taking advantage of these people through its immigration system.  If the United States wants to remain as a country that attracts hard working people from all over the world, a new system needs to be created in order to provide people in need simple avenues to come legally and be able to make their American dream come true, as many immigrants before them have.

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About Josue Jimenez, Managing Editor Emeritus (18 Articles)
Josue Jimenez is a 2017 graduate of Campbell Law School and served as the Managing Editor for the Campbell Law Observer during the 2016-2017 academic year. He is a Los Angeles, California native, but has lived in Charlotte, NC, since November, 2003. In 2013, Josue graduated from the University of North Carolina at Chapel Hill with degrees in Global Studies (Concentration in Politics, region Latin America) and Religious Studies (Focus on Early Christianity). From August, 2013- July, 2014, Josue worked as a legal assistant at an immigration law firm in Grand Rapids, MI. During the summer of 2015, he interned at Fayad Law, PC, where he worked on immigration and criminal defense cases. In the summer of 2016, Josue interned at the Charlotte Immigration Court where he prepared draft decisions for Immigration Judges on immigration matters including cancellation of removal and asylum applications. As well as, consulted with Immigration Judges and Judicial Law Clerks regarding pending decisions. During his final semester at Campbell Law Josue interned in the Legislative Analysis Division of the NC General Assembly. There, Josue assisted attorneys in the Division with numerous projects that dealt with constituent requests to pending legislation. These projects also covered a wide range of legal issues, ranging from multi-state surveys related to health and human services, agriculture, immigration, and aviation, to research on current state and federal law related to employment, local governments, veterans, immigration, and criminal law. Josue also served as the Vice-President of the Student Bar Association and a Peer Mentor during the 2016-2017 academic year.
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