CONTROL IS KEY: ASSESING THE WORKING CONDITIONS OF H-2A AND H-2B TEMPORARY WORKERS

J. Calvin Klomparens

Abstract

This study analyzes whether employers in the H-2A and H-2B guest worker programs treat their workers well or poorly. Further, this study attempts to surmise whether such treatment is systemic and a result of the programs themselves or a result of individual bad actors. In addition, this study scrutinizes the legal framework of the programs themselves. In examining the current use and makeup of the H-2A and H-2B visa programs, this study attempts to examine the effect of these programs and the policies underneath them on the agricultural and nonagricultural guest worker. This study hypothesizes that the poor treatment of guest workers is caused primarily by bad incentives created by the guest worker programs. This study concludes that guest worker programs create several perverse incentives that are unique to the programs and are not a factor caused by externalities. Finally, this study proposes a policy change that could allay this problem.

Introduction

Miguel is a Mexican citizen. He has worked diligently in Mexico, but times are hard. Money is scarce. Food is difficult to procure. One day, Miguel learns of a program that might save his life: the H-2A visa program. This program allows Miguel to seek employment in the United States with the permission of an American employer, provided he can pass the application process. After qualifying for the program and paying for his transport to the United States, Miguel eagerly begins work at a farm. However, the living conditions are not what Miguel had expected. Because Miguel had no money for transportation to the United States, he had borrowed that money from his employer. Unfortunately, this debt binds him in a system of debt peonage, forcing him to stay longer than he might want. In addition, the H-2A law bars Miguel from switching employers, which essentially stops him from ever reporting any abuse he suffers to the authorities. Miguel’s living conditions are squalid; his pay is miniscule. His employers had falsely advertised the job and he has virtually no legal means of recourse, as he is completely barred from the U.S. legal system except for lodging a complaint that his employer did not follow the contract that he signed.

While Miguel’s story is fictitious, it accurately summarizes the experience of many foreign workers brought to the United States under the H-2A and H-2B visa programs. Many workers enter the United States with little information about H-2A or H-2B visa programs and find themselves tied to a single employer with no opportunity to switch. Moreover, these workers often find themselves bound by debt peonage to this employer, making their independence nearly impossible.

The United States employs several programs that allow foreign workers to seek employment in America under certain conditions. The H-2A and H-2B programs allow foreign citizens to work temporarily in the United States, provided that an American employer signs off on the document (U.S. Citizenship and Immigration Services, 2020a; U.S. Citizenship and Immigration Services, 2020b). For both of these visas, the worker is able to stay in the United States in one-year increments for a maximum of three years before he is required to spend three uninterrupted months in his country of origin (U.S. Citizenship and Immigration Services [USCIS], 2020a; USCIS, 2020b). USCIS (2020a; 2020b) reports that the decision to bring in a guest worker is left up to the employer, not the guest worker; thus, the vast majority of the power is in the hands of the employer rather than the guest worker.

Some experts argue that the H-2A and H-2B programs are fundamentally flawed and therefore must be completely overhauled or eliminated altogether. Others argue that the problems of abuse and mistreatment are greatly exaggerated and should not be considered when making policy decisions. Still others argue that while the H-2A programs have major issues, certain policy measures can be taken to

ameliorate the problems that pervade these programs.

The research in this study is primarily qualitative in nature, relying on reports and documents produced by the government, private entities, legal and immigration experts, and individual stories by the workers themselves. This study performs a secondary analysis of these sources to answer the research question: are the conditions suffered by guest workers caused by the programs themselves and, if so, what can be done to fix these problems? This study hypothesizes that the poor conditions of temporary guest workers under the H-2A are a result of fixable policy decisions and that these programs can be adjusted to protect the guest workers while maintaining the economic benefits that these programs produce.

Literature Review

Many sources contend that the H-2A and H-2B visa programs are inherently flawed and harm the individuals who use them. In particular, the H-2A program has received most of the scrutiny. For many, the most concerning aspect of the H-2A program is its legal framework, which binds temporary workers to a single employer. A U.N. Special Rapporteur, commenting on the H-2A visa program, argued, “The legal framework governing temporary visas for migrant workers … is of particular concern as it exposes applicants to the risk of exploitation, including human trafficking” (Farmworker Justice, 2016, para. 4). Furthermore, Bier (2012) contended,

While undocumented workers can easily change employers and move to new jobs, these legal workers can only work for the employer that brought them into the U.S. This means that if that employer closes or fires them (a process in and of itself), they must return to their home country. This makes the legal market almost as great of a risk as the black market. (para. 3)

Additionally, Farmworker Justice (2011) found that the protections offered by the H-2A program are incredibly modest and do not sufficiently protect guest workers from abuses by their employers.

Consequently, many scholars and human rights organizations level the charge of exploitation at the H-2A visa program in particular. Farmworker Justice (2011) reviewed many cases of individual farmworkers and found that the abuse of workers by employers is rampant and systemic, with no relief from the very modest protections offered by the program. According to the report, foreign guest workers are uniquely at risk for wage theft due to their limited knowledge of the law. As Farmworker Justice (2011) put it, “Iit is clear that wage theft is rampant throughout

the H-2A program” (p. 24). The Southern Poverty Law Center (2013) summed up the H-2A program thus:

Far from being treated like “guests,” these workers are systematically exploited and abused. Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market — the ability to change jobs if they are mistreated. Instead, they are bound to the employers who “import” them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation. Bound to a single employer and without access to legal resources, guestworkers are routinely: Cheated out of wages; Forced to mortgage their futures to obtain low-wage, temporary jobs; Held virtually captive by employers or labor brokers who seize their documents; Subjected to human trafficking and debt servitude; Forced to live in squalid conditions; and Denied medical benefits for on-the-job injuries. (p. 1)

Former U.S. Congressman Charles Rangel was blunt: “This guestworker program’s the closest thing I’ve ever seen to slavery” (Southern Poverty Law Center, 2013, p. 1).

Moreover, the H-2A program is open to abuse due to the type of work that many guest workers perform. As Oxfam America and Farmworker Justice (2010) reported,

Such incidents are made more likely by the piece-rate system under which exploited workers are forced to operate. To take breaks for drinking water or other health reasons, workers stop work and thus earn less money. Between July 2004 and July 2008, 15 farmworkers suffered heat-related deaths while working in the fields in California. A National Agriculture Workers Survey in 2002 found that 20 percent of farmworkers reported that their employers did not provide drinking water and cups while at work. (p. 3)

The H-2B program is not free of its faults either. The Government Accountability Office (2015) reported that both the H-2A and H-2B programs have vulnerabilities that could be exploited by employers to the detriment of the guest workers. Another Government Accountability Office report in 2010 found such abuses in the H-2B program as “employers failing to pay promised wages, overtime, or both; employers charging H-2B workers exorbitant fees; and employers and recruiters submitting fraudulent documentation to government officials” (“What GAO Found” section).

The report went on to say that “in one case H-2B workers became indebted to their employer through a series of arbitrary charges. The employer then forced workers to take second jobs at local fast food restaurants to pay these debts” (“What GAO Found” section).

In summation, Moorfield (2019) found that both the H-2A and H-2B visa programs have become notorious for worker abuses, and for good reason. Both of these programs feature a unique system of employer control that allows the workers to be exploited with few repercussions for the employer. As he explained, “These provisions encourage a host of labor abuses, as seen in numerous civil and criminal court cases involving wage theft, negligent safety standards, sexual and other forms of assault, extorsion and discrimination in hiring, and unlawful termination” (p. 242).

However, some scholars contend that the H-2A program is not nearly as exploitative as many say. Bier (2020) reported that companies are required to pay H-2A workers a standard salary set by the government. This salary, known as the Adverse Effect Wage Rate (AEWR), is “a regional average wage based on annual government surveys” (Bier, 2020, p. 3). Moreover, this average wage rate is, on average, 57 percent higher than each state’s minimum wage. In addition, employers must pay for transport to and from the jobsite and pay for either kitchens or three meals a day (Bier, 2020). Furthermore, Bier (2020) found that, when examining the violations that employers have been punished for by the Department of Labor, “Fewer than 20 employers from 2008 to 2018 had serious enough violations to have been suspended or debarred from the program—an annual rate of 0.27 percent of the employers” (p. 12).

Data and Methods

This study takes a qualitative approach to the research question, examining the historical basis for the H-2A and H-2B visa programs, relevant law, government reports, and reports by various organizations to characterize the experiences of various H-2A and H-2B workers. A quantitative approach to this research question could be to examine the number of debarments in the H-2A and H-2B visa programs, expanding on the research done by Bier (2020). However, this method would only be able to analyze instances when the government detects and punishes violations of employers’ contracts with their workers. As the Southern Poverty Law Center (2013) found, the structure of the H-2 visa programs make it highly unlikely that a worker will report abuses of their wages, since their entrance into the United States is reliant entirely on the goodwill of their employers.

The research in this study begins with an examination of the history of the H-2A and H-2B programs, shifts to an analysis of the relevant legal statutes that

support these programs and might potentially cause the problems outlined in the further research, and concludes with a discussion of various case studies relevant to the H-2A and H-2B visa programs. For the context of this research, a guest worker is a foreign worker brought into the United States in the H-2A and H-2B visa programs. Other programs also utilize guest workers, but they are not part of the purview of this research.

Research

Despite a long history of operation, the H-2A and H-2B visa programs remain steeped in controversy. Issues of human rights abuses continue to be pushed aside and the fundamental issues that drive such abuses remain unaddressed, showing the need for governmental action. Whatever the downsides of the programs, Mexican workers repeatedly apply and accept H-2A and H-2B jobs. This is strong evidence that the Mexican workers find them incredibly valuable. As Bier (2020) contends,

Higher U.S. wages motivate Mexicans to accept U.S. farm jobs...The annualized wage for H-2A workers was almost $25,000 in 2019. Mexico’s minimum wage for farmworkers was just $4.64 per day, less than $1,200 per year. Even the highest paid agricultural workers in Mexico only earn $15 per day. Even if H-2A minimum wages fell, Mexicans would still greatly benefit from H-2A jobs. Indeed, a larger number would benefit because a lower wage would allow farmers to hire more workers. Nearly all H-2A workers willingly attempt to return year after year. While the State Department fails to disclose the frequency at which H-2A workers return, one indication is that the similar H-2B program for nonagricultural workers—most of whom are also Mexicans—doubled in size when Congress allowed H-2B returning workers to be exempt from the cap in 2007. The H-2A program is uncapped, so no similar experiment can occur, but H-2A workers also report repeatedly participating. (p. 12).

History of the H-2A and H2-B Programs

Early Iterations of the Programs

The U.S. created programs very similar to the modern H-2A and H-2B visa programs around World War II. The very first iterations of these programs were instituted as an emergency policy during World War I; this led to increased seasonal migration in the 1917-1921 years (Onel & Farnsworth, 2016). However, in 1922, after it had served its purpose as an emergency wartime measure, this program was terminated (Onel & Farnsworth, 2016). According to the Bracero History Archive (2020), the guest worker program resurged in 1942 when the President issued an executive order to combat labor shortages in the U.S. market; moreover, this program

grew out of a series of bilateral agreements between the U.S. and Mexico. Just like the modern H-2A and H-2B programs, it allowed Mexican workers to come to the United States on temporary visas to work in primarily agricultural areas. Although these workers primarily worked in agriculture, some also built railroads and worked on other seasonal projects (Onel & Farnsworth, 2016). This program struggled with a lack of accountability for employers, who routinely turned a blind eye to the abuse of guest workers. As the Bracero History Archive (2020) explains,

In theory, the Bracero Program had safeguards to protect both Mexican and domestic workers for example, guaranteed payment of at least the prevailing area wage received by native workers; employment for three-fourths of the contract period; adequate, sanitary, and free housing; decent meals at reasonable prices; occupational insurance at employer's expense; and free transportation back to Mexico at the end of the contract. Employers were supposed to hire braceros only in areas of certified domestic labor shortage, and were not to use them as strikebreakers. In practice, they ignored many of these rules and Mexican and native workers suffered while growers benefited from plentiful, cheap, labor. (para. 4)

Rise of the Modern H-2A and H-2B Visa Programs

The U.S. created the H-1 and H-2 visa programs in 1952 when it passed the Immigration and Nationality Act (Onel & Farnsworth, 2016). The H-1 program was intended for “temporary workers of distinguished merit or ability,” whereas the H-2 program was intended for “other temporary workers” (Onel & Farnsworth, 2016, p. 14). In 1986, the Immigration Reform and Control Act split these programs into the H-2A and H-2B visa programs (Farmworker Justice, 2011). Indeed, the modern H-2A and H-2B visa programs today are still authorized by the antiquated Immigration and Nationality Act (Department of Homeland Security, 2019).

Makeup of the H-2A and H-2B Visa Programs

H-2A Workers

The H-2A visa program has no visa cap; employers can bring in as many temporary workers as they want as long as they are approved by USCIS (2020a). USCIS publishes which countries are eligible for H-2A visas in any given year. In fiscal year 2019, the United States imported 204,801 H-2A workers; 188,758 of those were from Mexico (U.S. Department of State, n.d.-a; U.S. Department of State, n.d.-b). Mexico, therefore, rightfully dominates the discussion around H-2A visas.

rules are often followed. As the Government Accountability Office (2010) explains,

Prospective H-2B employers must apply to Labor for a temporary labor certification attesting that American workers capable of performing the work are not available and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed American workers. The H-2B program requires the employer to attest to Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, the applicable federal minimum wage, the state minimum wage, or the local minimum wage to the H-2B worker. The employer also must agree to offer terms and working conditions typical to U.S. workers in the same geographical area; not use H-2B workers to replace striking workers; comply with all federal, state, and local labor, health, and safety laws; and detail and clarify all paycheck deductions in the job offer and ensure that all deductions are reasonable. (p. 3)

These laws are nominally in place to guard against worker exploitation by ensuring that the H-2B workers are paid fairly and not exploited. Some contend that employers rarely follow these regulations; however, the difficulty of obtaining accurate data regarding the overall living conditions of H-2 workers complicates this argument; indeed, given their vulnerable position, workers have a great incentive not to report abuses. Nevertheless, in contravention of the law, employers do not reimburse guest workers for their transportation costs in certain cases (The Southern Poverty Law Center, 2013).

Case Studies

H-2A Case Studies

Perez-Benites v. Candy Brand. As the Southern Poverty Law Center (2013) reports, a company in Arkansas called Candy Brand recruited Mexican workers every year for seasonal temporary work. These workers were often required to pay $275 to $375 just to get their name on a list of workers who were eligible to be brought to the United States. The workers’ willingness to pay this amount merely to be considered for an H-2A visa underscores the desirability of the visas and the unique power that employers possess. To the workers’ surprise, some of them were required to pay $1,000 to have their own passports and visas returned to them once they arrived in the United States. As Juan Pablo Asencio Vasquez (2013) recounts,

H-2B Workers

Unlike the H-2A program, the H-2B visa program sets a cap on the number of workers who can immigrate to the United States in any given year (USCIS, 2020b). Currently, this cap is set at 66,000 per fiscal year; 33,000 are allowed in the first half of the fiscal year and 33,000 are allowed in the second half (USCIS, 2020b). However, there are workers who are exempt from this cap; therefore, the actual number of H-2B workers entering the United States in any given year can exceed the cap set by USCIS (2020b). In Fiscal Year 2019, the U.S. brought in 97,623 H-2B workers (U.S. Department of State, n.d.-a). Of these workers, 72,339 were Mexican. Evidently, Mexican workers dominate both the H-2A and H-2B visa programs. Approximately 92% of H-2A and 74% of H-2B workers came from Mexico (U.S. Department of State, n.d.-a; U.S. Department of State, n.d.-b). This is likely due to the nature of living conditions in Mexico and the geographical closeness of Mexico to the United States.

Legal Examination

The relevant legislation varies for the H-2A and H-2B programs, although both programs bear several significant similarities. In fact, some researchers do not distinguish between H-2A and H-2B visa holders, considering H-2 visas as a distinct, single category of visa (Pren & Gonzalez-Araiza, 2019). According to Moorfield (2019), “Neither H-2A nor H-2B visas provide a mechanism for visa recipients to obtain longer-term legal status in the United States, although adjustments to legal status do happen through other avenues” (p. 243). Furthermore, both the H-2A and H-2B visa programs contain a provision that H-2A and H-2B workers must be paid a special minimum wage that is typically set above the minimum wage of the state in which they work (Moorfield, 2019). This provision is not in place to protect the foreign workers—as will be shown—but rather to protect U.S. workers whose wages might be depressed by the influx of foreign workers (Moorfield, 2019).

The most significant provision of law that applies to both H-2A and H-2B workers is the single employer mandate. Both the H-2A and H-2B visa programs prevent guest workers from switching their employer in the middle of a contract; they must either fulfill the entirety of the contract or quit, which is sometimes impossible (Moorfield, 2019).

H-2A Law

The law requires that U.S. employers act as a mediator between foreign workers and the United States Federal Government. It does not permit foreign nationals to reach out to the United States directly, seeking H-2A visa status. This gives employers much power. As Bier (2020) explains, “Farmers must petition the government to

request foreign workers before workers can receive visas, meaning that farmers control which countries the workers come from” (p. 12). This power is compounded by the desirability of H-2A visas.

There are several provisions of the H-2A law that are designed to protect foreign workers. According to Pren and González-Araiza (2019),

Under the terms of the H-2 agreement, the U.S. government requires that workers meet specific conditions. They must receive the same wages as U.S. citizens doing the same labor and work for a minimum of 35 hours per week. They must also have access to lodgings that meet certain minimal federal standards, and receive workmen's compensation for injuries or illnesses that occur on the job. Finally, they must be provided with all tools and supplies needed for the job free of charge. (p. 261)

However, despite these regulations, migrants typically cover the cost of transportation to the United States and the cost of lodging once they arrive (Pren & GonzalezAraiza, 2019).

Unfortunately, the legal makeup of the H-2A program makes workers incredibly vulnerable to abuse. Bacon (2018) described the inherent vulnerability of H-2A workers thus:

Joe Morrison, an attorney with Columbia Legal Services, notes that H-2A workers are inherently vulnerable for several reasons. “Virtually all have had to get loans to support their families until they can begin sending money home, as well as to cover the cost of visas and transportation,” he explains. “That basically makes them indentured servants. They have the least amount of legal protection, even less than undocumented immigrants.” H-2A workers are also excluded from the Migrant and Seasonal Agricultural Worker Protection Act and beholden to one employer. “Even undocumented workers can vote with their feet if they don’t like the job,” Morrison says. “If H-2A workers complain, they get fired, lose their housing, and have to leave the country.” (para. 19)

H-2B Law

The H-2B program has many different regulations that attempt to provide a just and fair working environment for all of those involved—although the protections for H-2 workers are often merely ways for the government to ensure suitable working conditions for U.S. workers in similar occupations. It is questionable whether these

He held my passport up in the air and threatened to cut it if I didn’t pay him. I didn’t have all of the money he asked for but he gave me back my passport on the condition I would pay the rest of the money to his son in the United States after I started working for Candy Brand. The recruiters threatened to kill my wife and children in Mexico if I didn’t pay. (The Southern Poverty Law Center, p. 12)

The employer did not reimburse the workers for their travel costs to the U.S., in defiance of current law (The Southern Poverty Law Center, 2013).

“Manuel”. Guest workers are often cheated out of their wages by employers, who use their leverage as the holder of the guest worker’s visa as a powerful bargaining chip. A guest worker, Manuel, explained his story to Farmworker Justice (2011):

“When we came out of the bank, the boss was already on the bus waiting for us,” remembered Manuel. The boss had a “blacklist” in his hand indicating how many tubs of oranges each worker had filled. Workers were forced to pay back the difference between their piece rate earnings and the legally required Adverse Effect Wage Rate (AEWR)—also known as build-up pay—to the crew leader. “He was robbing us…he stole a lot of money,” said Manuel, who had to kick back as much as $130 some weeks. (p. 24)

Furthermore, the employer held the workers’ visas over their heads: “Though the workers knew that they were legally entitled to be paid the hourly AEWR, their employer took advantage of the fact that their visas were dependent on him” (Farmworker Justice, 2011, p. 24).

Sarbanand Farms. Another report of exploitation can be found in the story of Honesto Silva Ibarra. Bacon (2018) summarized the story thus:

On August 6 of last year, Honesto Silva Ibarra died in a Seattle hospital. Silva was a guest worker—a Mexican farm worker brought to the United States under contract to pick blueberries. He worked first in Delano, California, and then in Sumas, Washington, next to the Canadian border. His death, and the political and legal firestorm it ignited, has unveiled a contract labor scheme reminiscent of the United States’ infamously exploitative mid-century Bracero Program.

In a suit filed in January in the U.S. District Court in Washington State, the state’s rural legal aid group, Columbia Legal Services, charges that Silva’s employer, Sarbanand Farms, “violated federal anti-trafficking laws through a pattern of threats and intimidation that caused its H-2A workforce to believe they would suffer serious harm unless they fully submitted to Sarbanand’s labor demands. (paras. 1-2)

Furthermore, Sarbanand Farms was accused of making extreme demands of their guest workers, causing the death of Silva (Bacon, 2018). The legal complaint alleged that the employers demanded that the guest workers pick two boxes of blueberries an hour or be sent back to Mexico, work twelve-hour shifts, and meet the quota or be sent home and blacklisted (Bacon, 2018). In a particularly poignant quote, a manager reportedly told the guest workers that they “came here to suffer, not for vacation” (Bacon, 2018, para. 6). According to the legal suit, one day Silva was not feeling well, and told a supervisor so. A fellow guest worker claimed that “they said if he didn’t keep working he’d be fired for ‘abandoning work,’ but after a while he couldn’t work at all” (Bacon, 2018, para. 7). He collapsed after a while and was taken to the hospital, where he died (Bacon, 2018).

H-2B Case Studies

Signal v. United States. This case exemplifies the abusive potential of the H-2A and H-2B visa programs, especially in the area of dishonest recruitment. In this case, 500 workers from India were recruited by agents hired by the Signal International marine industry company. Allegedly, Signal International recruited these workers under the false pretense that they would be able to become U.S. permanent legal residents, in direct contravention of H-2B visa law (ACLU, 2013). According to the American Civil Liberties Union (2013),

Recruiting agents hired by the marine industry company Signal International held the guest workers' passports and visas; coerced them into paying extraordinary fees for recruitment, immigration processing, and travel; and threatened them with serious legal and physical harm if they did not work under the Signal-restricted guest worker visa. Once in the United States, the men were required to live in Signal's guarded, overcrowded labor camps, subjected to psychological abuse and defrauded out of adequate payment for their work. (para. 2)

The guest workers were promised that they would be able to become permanent lawful U.S. residents through the program; that promise never materialized.

According to the complaint in the case, the workers were exploited before they even arrived in the United States. The 500 workers were forced to pay $20,000 just

to be a part of the program, and then another $1,000 upon arrival in the United States to live in “guarded and crowded accommodation” (Business & Human Rights Resource Centre, n.d., para. 3). While the court rejected the workers’ claim of class certification, a later court case in 2015 found in favor of five of the plaintiffs, requiring Signal International to pay $12 million in damages (Business & Human Rights Resource Centre, n.d.).

This experience is not isolated to these workers. As the International Labor Recruitment Working Group (2013) contends, the experience of these workers typifies the normal guest worker experience. As they explain,

Recruitment for different industries varies, but generally is structured as follows: (1) A local recruiter makes contact in a worker’s home community to present a job opportunity in the United States. Interested workers pay a lump-sum fee to the recruiter to be considered as candidates. The lump sum rarely is itemized, but may include a recruiter’s fee and visa and travel expenses. Most workers must borrow this money from family and friends or from private lenders who often are associated with the recruiter and who usually charge exorbitant interest rates. (2) The local recruiter directs workers to a larger recruitment agency, or counterpart agency in the United States, to complete the necessary paperwork and receive a formal job offer. Workers may be charged fees again at this point. (3) Workers travel to the nearest U.S. consulate to attend the visa interview and obtain the work visa. (4) Workers travel to the job site in the United States. (p. 9)

Guatemalan Workers. Companies recruited Guatemalan workers to work in forestry jobs, which are considered under the H-2B umbrella of non-agricultural work (Southern Poverty Law Center, 2013; Costa, 2016). The Southern Poverty Law Center (2013) had first-hand experience representing these Guatemalan workers, and described the experience of such workers thus:

These workers have been routinely subjected to exploitative recruitment tactics, often by the same recruiters who have consistently escaped liability for their actions. This is true despite the Department of Labor’s recent efforts to better regulate the H-2 program, including enacting regulations that prevent employers from knowingly engaging recruiters who charge fees to workers. In reality, these incremental regulatory changes have not stopped recruitment abuse in guestworker programs. Guestworkers from

Guatemala generally pay at least $2,000 in travel, visa and hiring fees to obtain forestry jobs in the United States. (p. 9-10)

Moreover, the abuse of Guatemalan workers appears to be more likely due to their poor conditions at home. In Guatemala,

They generally work as subsistence farmers and have virtually no opportunity to earn wages …. Thus, their only realistic option for raising the funds needed to secure H-2 jobs in the United States is to visit a loan shark, who will likely charge exorbitant interest rates. (The Southern Poverty Law Center, 2013, p. 11)

These exorbitant interest rates then continue to haunt the workers while they work in the United States, tying them to their employer even more strongly than the singleemployer mandate requires. As one Guatemalan worker described,

The recruiter told me that I would make $8.30 an hour and would never run out of work to do. I didn’t realize that I would also have to pay so much money each month for rent, transportation and work supplies. He made it sound like we would earn lots of money, but I wasn’t even able to pay off my debt. (The Southern Poverty Law Center, 2013, p. 11)

These problems pervade both programs; according to The International Labor Recruitment Working Group (2013), “U.S. work visa programs are plagued with incidents of employers keeping internationally recruited workers in conditions of slavery, severely restricting the ability of these individuals to move freely” (p. 37). Farmworker Justice (2011) echoes this argument:

Most H-2A workers arrive in the United States with significant debt. Some have paid as much as $11,000 for the chance at a job. Others have left the deed to their house or car in the hands of a recruiter as collateral to ensure that they will “comply” with the terms of their contract. (p. 23)

In fact, as Moorfield (2019) found, the working standards of H-2A and H-2B migrants “generally approximate those of unauthorized migrants” (p. 245).

Conclusion

The H-2A and H-2B visa programs have remained in place for decades; however, they have recently been challenged on humanitarian grounds. It is plain to see that abuses, while not necessarily the norm, are prevalent throughout both the H-2A and H-2B visa programs. Although qualitative research such as this study can never gauge the frequency of abuse, it can certainly describe what abuse looks like and if it does exist. One story such as those detailed in this study might be able to be dismissed; however, the prevalence and weight of these stories reveal a common theme: these abuses happen often and stem from fixable policies. Therefore, the government must take swift action to stop them. Moreover, this study, through examination of the relevant legal codes, finds that the protections for both H-2A and H-2B workers are sorely lacking. There are several fundamental issues that prevent these guest workers from operating on a level playing field with other U.S. employees: first, the employers of these workers have a much better understanding of the American legal system than they do, and the workers are aware of this. They are highly likely to believe something that their employer says, even if it is false. Second, the system of recruitment opens the door for massive abuses to occur: an unscrupulous employer could passively open the door for his recruiters to promise prospective workers utterly unrealistic things—permanent residence, exorbitant wages, splendid living conditions—and then never deliver on those promises.

Perhaps the most significant legal obstacle to justice for guest workers is the mandate that guest workers may only work for the employer that brought them over into the United States. They are neither able to switch employers nor petition for a switch. This leaves the door open to massive amounts of abuse. As the research has shown, these visas are invaluable to Mexican workers. However bad the situation is in America, it is much worse in Mexico. Many times, these visas are literal lifesavers. Therein lies the danger: the employers have all the leverage in the employee-employer relationship. All they need to do is not invite the guest worker back into the United States the next year if they show any signs of reporting the squalid conditions or unfair treatment they are receiving in the United States. And thus the abuse continues.

The United States Federal Government can take several actions that would ameliorate the conditions of H-2 guest workers and alleviate the pressure on private organizations to provide a civil remedy to the abuses they experience: the United States should first abolish the single-employer mandate, freeing guest workers to switch employers if they feel the need. The exact form that this policy would take will not be outlined here, but the salient part of this policy is the empowering of workers. The status quo gives them no leverage; this policy change would give them at least some. Second, the United States should ensure that the policies promulgated

by the USCIS and DOL are closely followed. This might require an increase in enforcement. The most important regulations to enforce are those prohibiting illegal recruiting practices. The exploitation of guest workers begins with recruitment; it must be nipped in the bud.

Guest workers are often fleeing oppression in their own country. They live in squalid conditions on sometimes no more than four dollars a day (Bier, 2020). The H-2A and H-2B visa programs have been able to give these guest workers meaningful work in the land of opportunity: the United States of America. But the United States must ensure that these guest workers are not trading one form of oppression for another: a run-down house in Mexico for a squalid one in America. The H-2A and H-2B visa programs could be strengthened significantly to prevent further abuses— policymakers should see to it that they are.

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