By Luis Arias
Associate Editor, Vol. 21
Executive Editor, Vol. 22
Employers in the United States sponsor thousands of temporary guest workers every year through the H-2 visa program. Employers that meet the specific regulatory requirements can either sponsor agricultural (H-2A) or non-agricultural (H-2B) guest workers. In order to qualify, an employer has to submit a petition to the Department of Labor (DOL), the agency that oversees these visa programs. To obtain approval from the DOL, an employer must certify that it cannot attain sufficient U.S. workers to fill the positions, and that the wages and working conditions of American workers will not be “adversely affected.” Congress has set the H-2B cap at 66,000 guest workers per year and has not set a cap for the H-2A visas.
Although the H-2 visa programs are contentious, the H-2B visa program is once again in the headlines. The 2016 appropriations act reduced the DOL’s funding for the fiscal year 2016 and implemented new provisions for the H-2B program. As a result of the funding cuts, the DOL issued emergency H-2B guidance about how it intends to implement the new provisions. One provision prevents the DOL from using funds to enforce a rule that requires employers to pay guest workers competitive wages for at least three-quarters of the hours they work. Another provision prevents the DOL from using funds to enforce a rule that requires employers to provide similar working conditions to both guest workers and U.S. workers. Labor groups and immigrant advocacy organizations argue that these new provisions make H-2B workers vulnerable to over-recruitment and exploitation.
Guest worker abuse under the H-2B visa program is well-documented and ranges from psychological and economic exploitation to human trafficking. The National Human Trafficking Resource Center has reported more than 4,000 trafficking cases since 2007. While worker abuse happens for many reasons, there are certain circumstances that make individuals more susceptible to labor trafficking. Most victims are recruited in their home countries, where job recruiters give false job promises and charge the victims for visa or transportation fees with exorbitant interest rates—between 5 and 10 percent per month or 60 percent per year. Typically, such guest workers arrive to the U.S. with debt ranging from $500 to over $10,000, which they have no possibility of repaying through the work offered by the employer during the term of the employment contract. Additionally, because many of these victims live in poverty in their home countries, recruiters sometimes require them to leave collateral, such as the deed to their house, to ensure that they will fulfill their contract.
Once the workers get to the U.S., they realize that the nature of the work is substantially different from what they were told, including their wages and schedules, and that they might even have to pay unrealistically high fees for meals and housing. For example, one worker from Guatemala said that after receiving meager wages and not having work for weeks, many workers left their jobs in even greater debt as the interest in their loans continued to accrue. The worker commented that, “the workers feared that they would lose their homes, bring shame to their families, or put their lives in danger if they returned to Guatemala without having paid their debts.” Guest workers owe these debts to either the recruiters or employers, and often to both.
Because of this arrangement, the employers have a lot of leverage and power over the employees. Because an employer can decide if an employee can come to the U.S., the employer freely plays the “deportation” card when a worker tries to assert his or her rights. Employers also frequently confiscate the employee’s passport and visa and tell the employee that they will not give it back until the contract is fulfilled. Employers even withhold earnings and threaten to blacklist the employees so they cannot come back to work in the U.S. All of these conditions have led to extensive research regarding the H-2 visa programs. The United States Government Accountability Office published a report in March 2015 concluding that increased protections are needed for guest workers. And the Southern Poverty Law Center, in their research, concluded that guest worker programs in the U.S. are akin to slavery.
In one highly publicized case, for example, workers from India were lured by false promises of permanent U.S. residency and were convinced to pay tens of thousands of dollars to obtain temporary jobs at a Gulf Coast shipyard. Once in the U.S., the workers were forced into involuntary servitude and to live in crowded, guarded labor camps. In another case, a seafood supplier was fined for 11 serious safety violations and for wage-and-hour violations. The seafood supplier made employees work 24-hour shifts, locked the employees in the plant, and threatened to retaliate against the employees and their families in Mexico. The company paid guest workers less than minimum wage, did not pay overtime, and illegally deducted wages for items required to do the job.
The H-2 visa program, therefore, must find a workable balance between giving American businesses the advantage to compete internationally while maintaining complex policy objectives that protect guest workers. The “W” nonimmigrant visa program that was introduced in Congress was one possible improvement, but the bill unfortunately did not pass. The bill proposed adding a regulatory registration system for employers and workers to register online; it allowed guest workers to change employers and occupations to reduce the power that employers have over the workers; it prioritized visas for small businesses and high-demand jobs; and most importantly, it increased penalties for employers who committed certain labor violations. Additionally, American immigration policies should include regulations that make it harder for employers to recruit guest workers when there are sufficient national workers to fill the jobs. And lastly, as the Southern Poverty Law Center has suggested, the DOL should have more authorization to regulate employers and third party recruitment agencies. These varying measures will incentive employers to hire national workers and to give guest workers the basic protections that the workers deserve.
 See Close to Slavery: Guestworker Programs in the United States, Southern Poverty Law Center (Feb. 18,2013), https://www.splcenter.org/20130218/close-slavery-guestworker-programs-united-states.
 Kelly Knaub, DOL Releases Emergency H-2B Guidance, Law360 (Jan. 5, 2016), http://www.law360.com/articles/742135/dol-releases-emergency-h-2b-guidance.
 See id.
 See id.
 See id.
 See Labor Trafficking, Polaris (last visited Jan. 17, 2016), https://polarisproject.org/labor-trafficking.
 Close to Slavery: Guestworker Programs in the United States, Southern Poverty Law Center (Feb. 18,2013), https://www.splcenter.org/20130218/close-slavery-guestworker-programs-united-states.
 Supra, note 1 at 9.
 See id.
 See Labor Trafficking in the U.S.: A Closer Look at Temporary Work Visas, Polaris pg 3 (Oct. 2015). http://polarisproject.org/sites/default/files/Temp%20Visa_v5%20%281%29.pdf.
 Supra, note 1 at 10.
 Supra, note 9 at 4.
 See H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO (Mar. 6, 2015), http://www.gao.gov/products/GAO-15-154.
 See Close to Slavery: Guest Worker Programs in the United States, SPLC (Feb. 18, 2013), https://www.splcenter.org/20130218/close-slavery-guestworker-programs-united-states
 See Signal International Lawsuits, SPLC (last visited Jan. 20, 2016), https://www.splcenter.org/seeking-justice/case-docket/signal-international-lawsuits.
 See id.
 See id.
 Steven Greenhouse, C.J.’s Seafood Fined for Labor Abuses, NY Times (July 24, 2012), http://www.nytimes.com/2012/07/25/business/cjs-seafood-fined-for-labor-abuses.html?_r=0.
 Muzaffar Chishti, Faye Hipsman & Sarah Pierce, Recent Court Decision Put a Sharp Spotlight on U.S. H-2B Temporary Worker Visas Program, MPI (Apr. 23, 2015), http://www.migrationpolicy.org/article/recent-court-decisions-put-sharp-spotlight-us-h-2b-temporary-worker-visa-program.
 See id.