The guest worker H-2A visa program: a license for human trafficking and forced labor in the U.S. agricultural sector?

by Chayanich (Mint) Thamparipattra

Forced labor can happen anywhere in the world, independent of a country’s degree of economic development or the intentions of its government. Stories of forced labor by Burmese workers in the shrimping industry in Thailand and Thai farmworkers in the U.S. are not much different. Undocumented Burmese workers in the fishing industry in Thailand often found themselves working without pay for six months to pay off debts to brokers, facing physical abuse, and having their papers confiscated. Similarly, Thai workers in the Global Horizons human trafficking case mortgaged their lands or took out legal or illegal loans to pay recruiters who promised the American dream with three years’ legal work in the U.S. under the H-2A guest worker program. A worker who escaped from a plantation in Hawaii reported that he was confined in dilapidated housing, kept under 24-hour surveillance, restricted from any movement, and that his passport was confiscated. Unfortunately, this type of case is nothing new. It may be hard to believe that serious labor abuse still exists in the U.S., but a report by Farmworker Justice, No Way to Treat a Guest H-2A, reaffirms that trafficking in the form of forced labor and labor exploitation of U.S. guest workers are rampant. What is the H-2A program and why is labor abuse within this program so widespread?

The H-2 visa program was initiated under the Immigration and Nationality Act in 1952 to bring in foreign workers in response to labor shortages.  The program was later divided into the H-2A program for agricultural workers and the H-2B program for non-agricultural workers in 1986. This blog post will focus on the H-2A program, which allows employers to hire foreign workers for temporary or seasonal agricultural work from less than one year up to three years in order to address the U.S. domestic labor shortage.

The process that employers must follow to bring in workers under the H-2A program pursuant to a set of rules under C.F.R. § 655 is complex. An employer must first obtain a Temporary Employment Certification from the Department of Labor (DOL) by demonstrating that U.S. workers are not available and that employing guest workers will not adversely affect wages and working conditions of U.S. workers. To receive this certification, the program also requires employers to meet minimum benefits, wage, and working condition requirements for workers. Conditions include 1) free housing if workers could not return to their residence within the same day 2) free workers’ compensation 3) three meals a day with limited charges or provision of free kitchen facilities 4) payment of certain transportation costs 4) assurance of at least three-fourths of workdays promised in the contract and 5) specified rates and frequency of pay. Once the certification is approved, the employer has to submit a petition to bring in H-2A workers to U.S. Citizenship and Immigration Services (USCIS). After USCIS approves the petition, a prospective worker outside the U.S. can then apply for a visa at a U.S. Embassy or Consulate abroad. The employers normally use recruitment agents to procure workers to apply for these visas.

At the outset, the program seems to provide reasonable protections for guest workers. How then can this program be used by employers or recruiters to exploit workers? Many scholars and labor advocates[1] have pointed out the exploitative nature of foreign non-immigrant agricultural labor and conditions engendered by the program which often lead to labor exploitation and human trafficking as the following:

• Unregulated Recruitment Process: The program fails to regulate the recruitment process. Although the program prohibits employers from knowingly charging or permitting agents to charge workers’ recruitment fees, the reality is different. Employers use a recruiter or a chain of recruiters to find workers and these agents often charge workers exorbitant recruitment fees. The fees may include the cost of passport paperwork, consular appointments, visas, and transportation to the worksite as well as room and board. As the workers often have to mortgage their land or take out loans with high interest rates to pay the fee to local recruiters, they arrive in the U.S. in debt and are often desperate enough to accept an unfair change of terms and working conditions instead of returning home with empty hands. This high fee is an important factor since it causes workers to take on debt and thus become vulnerable to abuse. Some employers may actually be unaware of fee charging due to the complex and transnational chain of recruiters, while some may take advantage of this by claiming ignorance. Few employers were held responsible for this prohibition since the unregulated chain of recruiters makes it difficult to prove an agency relationship between the employers and the recruiters. Moreover, the penalty for violations, if found, is only revocation of a certification’s petition or banning the employers for a certain period of time. The incentive for employers to comply with the law is therefore low.  
• Lack of Legal Protection: Almost all U.S. domestic labor laws exclude H-2A farmworkers from their coverage. H-2A farmworkers are not entitled to maximum hour and overtime provisions under the Fair Labor Standards Act (FLSA), nor may they associate and bargain collectively under the National Labor Relations Act (NLRA). Moreover, H-2A farmworkers face a more precarious situation than other farmworkers since they are excluded from the Migrant and Seasonal Worker Protection Act (MSPA), which grants a federal cause of action for workers who were overcharged or misled by recruiters and employers, and allows them to seek damages. The workers can mainly rely on limited protections based on the employment contracts, which could be enforced by private action or by the DOL. There are obstacles for both types of enforcement. The Southern Poverty Law Center has argued that enforcement by the DOL is deficient since the agency conducts few investigations and takes little action even in the case of clear violations. Thus, it falls to workers to engage in private litigation to vindicate their rights, but in reality most workers can rarely afford attorneys. 
• Unfair contract due to the Three-Fourths Rule: The program allows employers to provide three-fourths of the wages and hours promised in their contract without being liable for breach of contract. This uncertainty of income allows the recruiters to give distorted assurance to workers that they could receive 100% of the stipulated wages and hours. This vague promise also makes it difficult for the workers to assess their costs and benefits in deciding whether they should join the H-2A program. 
• Binding Workers to One Employer: The program binds a worker to one job and one employer. If the individual works for another employer or is fired, he or she loses legal status and can be deported back to his or her home country. This condition renders the workers to submit themselves to any type of labor conditions, and to live in fear of speaking up against their employers since the employers may give them the “deportation card” by firing them. 
• Vulnerability of Workers due to characteristics of work: Many farmworkers lack knowledge of their legal rights and are isolated from services and networks since they work in rural areas and are moved to different farms in different areas. The fact that they cannot form a union makes it impossible to have a representative and bargain with employers. 
• Limited Access to Justice: Access to justice in U.S. courts is limited and difficult for H-2A workers. In its 2002 report, Human Rights Watch found workers fear or face blacklisting if they speak up about conditions, seek assistance from Legal Services attorneys, or become active in a union. Faced with a complaint, employers can often blame local contractors for misleading the workers. Finding a lawyer is also difficult for workers, and relying on prosecution by the Department of Justice (DOJ) might not be the best choice when the DOJ legal team has recently failed to prosecute the two biggest cases of alleged human trafficking (Global Horizons and Aloun Farms) because it reportedly could not meet its burden of proof beyond a reasonable doubt. The DOJ officials refused to elaborate on why the agency failed to pursue this case further.

The aforementioned features of the guest worker program have contributed to forced labor and human trafficking. As the Southern Poverty Law Center points out, these conditions have put workers in a situation similarly to indentured servitude. The H-2A system makes it easy for employers or recruiters to use force, fraud or coercion to make workers believe they have no choice but work due to their debt, the possibility of being deported and limited remedies. Common  labor practices impose exorbitant fees on H-2A workers for low-wage work, threats of deportation, confiscation of passports and visas as well as debt bondage through fees for rent, food and transportation.

While the U.S. has taken an active role and allocated funds towards the abolition of human trafficking around the world, it has arguably provided insufficient support at home. This author believes that the U.S. has also been lenient when it comes to self-assessment in its Trafficking in Persons (TIP) report and in a recent comment from the U.S. Government Accountability Office (GAO) on the H-2A program, which raised only non-serious problems about the program. Nothing about labor exploitation, forced labor, or human trafficking, which occur frequently under this program, is mentioned.

The U.S. government should reconsider its own assessment and reform the guest worker program before it would be subjected to comments of the ILO Committee of Experts, United Nations Human Rights Committee, or reports based on its ratified conventions. The U.S. has international obligations 

• to “suppress and not to make use of any form of forced or compulsory labor” and to “take effective measures to secure the immediate and complete abolition of forced or compulsory labor” (The International Labor Organization Convention No. 105 on the abolition of forced labor);
• to “establish comprehensive policies, programmes and other measures to prevent and combat trafficking in persons” (The Convention Against Transnational Organized Crime and the accompanying Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children – TIP Protocol); and
• to respect and to ensure to all individuals… [that n]o one shall be required to perform forced or compulsory labour" (The International Covenant on Civil and Political Rights - ICCPR).

It could be alleged that the U.S. has failed its obligations under the treaties to prevent trafficking and suppress forced labor since it has continued the H-2A program without making improvements, despite its knowledge of the flawed features of the guest worker program which indirectly facilitate trafficking and forced labor. Moreover, it failed to bring lawsuits against the accused of two important human trafficking cases and, as the consequence, barred the potential victims from claiming reparations. The U.S. can be held responsible for its failure to prevent trafficking even though it is an act of non-state actors and its authorities did not committed the crime directly. States have duty to respect human rights, which entails duty to prevent, investigate and punish violation of the rights under the Conventions as well as provide remedies and reparation to injured persons.[2] States’ omission to perform such duties, which lead to trafficking related events, constitutes international wrongful acts, which invoke state responsibility.[3] In this case, the failure of the U.S. to prevent trafficking and prosecute the perpetrators therefore could amount to violations of the three provisions. The human rights monitoring systems based on the three ratified Conventions and the UN charter could be triggered. The Committee of Experts under the ILO regular supervisory system could issue General Observations on compliance of ILO Convention No. 105, while trade unions or employer organizations could file a claim against the U.S. for failing to respect the Convention. 

Although the TIP Protocol does not create an expert committee, the United Nations Office on Drugs and Crime (UNODC) is mandated to issue the Global Report on Trafficking in Persons every two years and the situation in the U.S. could be reported. The United Nations Human Rights Committee may review the U.S. regular report and make particular comments on potential violations of the forced labor prohibition under the ICCPR. In addition to the three treaty-based monitoring systems, the U.S. will be subject to the UN Charter-based procedure called the Universal Periodic Review (UPR) in 2015. It is highly likely that human rights and hiring practices under the H-2 program issue will arise in the UPR by the push of NGOs and academics who petitioned for it in a hearing of a regional human rights system, the Inter-American Commission on Human Rights, on March 12, 2013.

As states have an obligation to provide measures for cessation and non-repetition once the internationally wrongful act occurred,[4] the U.S. government is obliged to make changes to this program immediately. There is no better time than this moment given the President’s declaration of intent to pursue immigration reform at the state of the union address in February 2013 and subsequent debate in Congress, as well as the high levels of support from NGOs and labor organizations. Although the H-2A program is not publicized as widely as issues of undocumented immigrants living in the U.S., it has made its way on the agenda of the 2013 immigration reform blueprint.

Laws and policies on labor migration can address a country’s labor shortages by facilitating migration, but they often fail to sufficiently protect those migrant workers who contribute to host countries’ economies. The prevalence of forced labor and human trafficking cases under the H-2A program indicates the urgent need for the U.S. government to improve the H-2A program. Since the U.S. has legal and moral obligations and the political will to combat human trafficking and initiate immigration reform, it should prioritize this issue and reconstruct its guest worker program before being condemned for failing its international human rights obligations. This will also help the U.S. maintain its leading role in combating human trafficking and make its TIP report more credible amongst other nations.

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[1] See generally Centro De Los Derechos Del Migrante, INC, Recruitment Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and Recommendations for Change (2013), available at http://www.cdmigrante.org/wp-content/uploads/2013/01/Recruitment-Revealed_Fundamental-Flaws-in-the-H-2-Temporary-Worker-Program-and-Recommendations-for-Change.pdf; Elizabeth Johnston, The United States Guestworker Program, 43 Vand. J. Transnat’l L. 1121 (2010); Sovereign Hager, Farm Workers and Forced Labor: Why Including Agricultural Guest Workers in the Migrant and Seasonal Worker Protection Act Prevents Human Trafficking, 38 Syracuse J. Int'l L. & Com. 173 (2010); Dorothy E. Hill, Guest Worker Programs Are No Fix for Our Broken Immigration System: Evidence from the Northern Mariana Islands, 41 N.M. L. Rev. 131 (2011).

[2] Anna Gekht, Shared but Differentiated Responsibility: Integration of International Obligations in Fight Against Trafficking in Human Beings, 37 Denv. J. Int'l L. & Pol'y 29, 50 (2008)

[3] See id. at 50.

[4] Id. at 50.