The Biden administration is expanding the number of non-agricultural guest workers who come to the U.S. under the H-2B visa program to unprecedented levels, even though the Department of Homeland Security (DHS) and the Department of Labor (DOL)—the federal agencies with authority to add more visas to the pool–are well aware that these laborers “face structural disincentives to reporting or leaving abusive conditions, and often lack power to exercise their rights in the face of exploitative employment situations.”
From 2018 to 2020, 853 H-2B workers were victims of labor trafficking, while wage fraud, illegal recruitment fees, wage theft, and illegal threats of retaliation have been constant features of the program—facilitated by the fact that it’s almost impossible for workers to quit their jobs since their visas are tied to a single employer. Former Rep. Charles Rangel, the former chairman of the influential Ways and Means Committee of the House of Representatives, called the program “the closest thing I’ve ever seen to slavery.”
The number of H-2B workers currently present in the country is unknown because there is no single measure to count them. For 2022, the Biden administration issued at least 121,000 visas, the highest figure ever, but the number of workers present in the country is higher as they can remain in the U.S. for up to three years. The DOL certified 126,190 H-2B workers on new and extended visas in the country in 2021.
Even though companies that abuse workers have rarely been held accountable, the program continues to expand rapidly. Fewer than 50 employers and only three agents and labor contractors, who function as middle people between workers and companies, are currently barred from participating in the H-2B program. Meanwhile, many abusive employers continue to recruit workers.
Rogue employers “clamor for the program to be expanded and for more visas because they know that this program will allow them to abuse workers and exploit the system without any kind of accountability,” said Kristin Greer Love, legal counsel for Centro de los Derechos del Migrante, a binational migrant workers’ rights organization based in Mexico City and Baltimore, Maryland.
“The government routinely rubber-stamps petitions for visas without evaluating if the employer is violating workers’ rights, if it’s complying with the very basic rules that exist in the H-2B program, or if it has had a series of complaints that have not been adequately resolved,” Greer Love said.
Take the case of Acadia Processors, a seafood processing plant based in Crowley, Louisiana, where Guillermina—who is using a pseudonym to protect her from potential retaliation from other employers as she is still an H-2B worker—worked in 2020. At first, the company seemed like an improvement from her previous H-2B employer, another seafood processing plant in Louisiana where she sometimes was forced to work from 1 a.m. until late at night. Then, the pandemic hit, and Acadia Processors did not implement any protective measures, said Guillermina, a Mexican national from the state of Tamaulipas. Soon, the plant workers—100 men and women—were forced to work despite COVID-19 symptoms.
“I told the managers I felt very sick, but nobody paid attention to my coworkers or me,” Guillermina said in a phone interview in Spanish. “I did not know anyone in Louisiana and felt I could not get help because I didn’t speak English.”
Fearing for their lives, Guillermina and a coworker went to the local hospital, where they received a phone call from the manager, who fired them on the spot. A representative of the company said the two workers abandoned their employment and stressed that his company followed the COVID-19 guidelines. However, the company never stopped operating, despite the sanitary emergency.
Assisted by Centro de los Derechos del Migrante, Acadia Processors’ workers filed a complaint with the Occupational Safety and Health Administration (OSHA), which dismissed their case. However, the DOL’s Wage and Hour Division determined that the company violated the Fair Labor Standards Act’s overtime requirements and forced them to pay $138,000 in overdue wages.
Despite being found liable for stealing wages from 100 workers, DOL still allows Acadia Processors to recruit foreign workers through the H-2B program for this year. The company is far from an outlier.
Advocates have called for the government to create a registry that would prohibit employers with a record of violating labor, civil rights, and anti-discrimination laws from hiring through the H-2B program, and to end the use of employer-provided surveys to set H-2B wage rates, which are invariably lower than those of U.S. workers. Advocates have also pushed to end the rampant sex and age discrimination in the recruitment process and to provide workers with a 90-day grace period to find another employer if their rights are being violated.
A few congresspeople have also joined the calls for reforming the H-2B program. Last March, Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, stated their opposition to the expansion of the program “unless it is accompanied by meaningful reforms” so that “workers are better protected.”
Following these calls, the Biden administration announced the most recent expansion of the program while committing to the creation of a Worker Protection Taskforce to ensure that workers “are not exploited by unscrupulous employers.” The announcement followed a promise to set up new rules to protect guest workers after the indictment last May of two dozen defendants in a multi-year human trafficking case affecting H-2A agricultural workers in Georgia. So far, no policy changes have taken place.
“It is a disappointment to see the administration expanding the H-2B visas without concrete policy changes,” said Greer Love.
Members of Congress in states that host non-agricultural guest workers have consistently urged the administrations to increase the number of H-2B visas, claiming that “small businesses across the country struggle to find employees.” Congress, however, gave the employers the right to conduct their own surveys to set the wages for H-2B migrant workers, often resulting in $3-5 less per hour than if they used DOL data. It is no wonder that few U.S. workers find these jobs attractive.
Congress has not only pushed for the expansion of the H-2B program without any changes, but it has also blocked protections for laborers. In 2015, the DOL promulgated extensive H-2B worker protection regulations. However, every year since then, the “Congressional appropriations bill prohibited USDOL from enforcing several provisions,” according to an October report by Justice in Motion, a migrants’ rights organization. Those protections can still be enforced through private litigation, but that avenue is out of reach for most guest workers.
Legislators of states that rely more heavily on this workforce—led by Texas, Florida, Alaska, Louisiana, and Colorado—constantly demand increases to the number of H-2B visas, including Democrats, said Daniel Costa, director of immigration law and policy research of the Economic Policy Institute, a progressive think tank. For example, the program’s expansion has become a pet issue for Sen. Lisa Murkowski (R-Alaska).
“Companies that recruit H-2B workers are very vocal and lobby quite a lot in Congress,” Costa said.
Some of the most vocal lobbyists are companies represented by the Essential Worker Immigration Coalition, a coalition of national businesses and trade associations from across the industry. The heaviest users of the program come from landscaping, construction, forestry, seafood and meat processing, traveling carnivals, restaurants, and hospitality industries, where “there is extensive wage theft and lawbreaking by employers,” according to an August report by the Economic Policy Institute.
Guest workers under the H-2B program—who are overwhelmingly men from Mexico, Jamaica, and Guatemala—often have no alternative but to endure exploitation and abuse. These laborers are not only bound to a single employer, but they usually arrive in the U.S. with enormous debts after being forced to pay illegal fees to recruiters or because their employers unlawfully refuse to reimburse them for their travel and visa-related expenses. They are also afraid of being blacklisted by employers and blocked from getting the H-2B visa again if they denounce mistreatment.
The H-2B program “is a form of indentured servitude,” said Costa. “One of the things that employers like the most about the program is the control they have over their workers, often mentioned as a stable and reliable workforce. And workers have very few incentives to complain because even if they do complain, investigations can take years.”
Least protected workers
Under the H-2B program, Olivia Guzmán from Sinaloa, Mexico, worked for 18 years in Louisiana’s seafood processing plants in 12-16-hour shifts, six days a week. Paid by the pound for the amount of crawfish she peeled, Guzmán earned less than the minimum wage per hour in the state, consistent with what research has found. According to the Economic Policy Institute, meat, poultry, and fish cutters and trimmers under the H-2B visa earn $3.04 per hour less than the average worker in these industries. On top of that, Guzmán was never paid overtime.
In a phone interview in Spanish, Guzmán said that all workers endured the same treatment in the companies she worked for since getting her first H-2B visa in 1997. None of the plants had doctors on their premises. For housing, the employers rented retrofitted trailers with only one fridge, one stove, and one bathroom, where up to 25 women lived for nine months.
“The women that went there without partners, the single mothers, all of them, were exposed to awful sexual harassment,” Guzmán said.
After almost two decades, Guzmán and her husband, Fausto García, decided to educate their fellow Louisiana H-2B workers on their rights. Retaliation from their employers was swift.
“As soon as you start demanding your rights, you get immediately fired, and you know that the next year you won’t be able to get a visa,” García said. “Employers have all the power.”
After a judge concluded that Guzmán had endured severe psychological harm, she obtained a U visa, a special visa for immigrant victims of certain crimes who assist law enforcement with the investigation or prosecution of the crime. To help protect other workers, Guzmán founded the Coalition of Sinaloan Temporary Migrant Workers in Mexico, which advocates for guest laborers’ rights.
Unlike the agricultural workers recruited to the H-2A program, the H-2B program does not require employers to provide housing or employment contracts enforceable in court. With the exception of workers in the forestry industry, H-2B workers are not entitled to federally funded legal counsel.
“A lot of the nonprofits’ legal services available in this country are federally funded, so they are unable to represent H-2B workers, [limiting] the organizations that can assist these folks to nonprofits that don’t receive any federal funds,” said Norma Ventura, staff attorney with the Immigrant Justice Project at the Southern Poverty Law Center, a nonprofit specializing in civil rights and public interest litigation. “This makes the list super small.”
Meanwhile, she added that private attorneys often decline to take these kinds of wage-theft cases because the claims are relatively small for their standards. And without legal representation, it is almost impossible for a worker to file a successful claim. According to advocates, the DOL is under-resourced and understaffed, so it cannot enforce even the current lax regulations.
“Workers often encounter language access challenges because the DOL does not have representatives who speak the workers’ languages,” said Ventura. “And the lack of resources impacts how quickly the DOL investigates and resolves complaints, which in our experience can take more than three years to complete,” she said.
For this tardiness, advocates are calling on the DHS to issue clear guidelines to provide immigration relief to workers while the DOL is investigating their complaints.
Workers are not passively waiting for these changes to happen. They are ramping up their efforts to protect their fellow laborers. The Coalition of Sinaloan Temporary Migrant Workers organizes workshops and conferences to educate guest workers about their rights, emphasizing that all fees to recruiters are illegal. Guzmán says that at least for now, recruiters are not as brazen as they were when trying to defraud potential workers, who routinely call the Coalition to ask them to corroborate if job postings are legitimate.
“I needed to do something to stop the abuse I witnessed,” said Guzmán. “I thought that if one of my children, nephews, or grandchildren come to work in the U.S., I want them to have better conditions than I did.”