05/29/2013

Meaningful Immigration Reform Must Protect Guest Workers from Abuse

As lawmakers on Capitol Hill continue the mark-up of Senate bill 744 – otherwise known as comprehensive immigration reform – there has been the usual beltway chatter that comes with high-profile legislation.

Everyone loves to play armchair quarterback – or armchair senator – analyzing what each amendment means for the fate of this bill. But political junkies and lawmakers need to see beyond the usual political games and talking points. 

Immigration reform is about people. It’s about people living far beyond Washington, who couldn’t care less about who’s scoring political points. They simply want an opportunity to live in this country and earn an honest paycheck without being abused by an employer.

They’re people like Blas Burboa Leyva.

Blas came to our country in 2005 from Mexico as part of the H-2A guest worker program, which allows employers to import foreign farmworkers for seasonal jobs. For Blas, the program sounded like a good opportunity to cover the expense of law school. But he quickly discovered the abusive nature of this program.

Even before he started his job, Blas had to pay a recruiter to reserve his spot at a tomato-packing operation in Arkansas. He also had to pay his own way to the United States. The costs quickly mounted. In fact, after his first year as a guest worker, he made only enough money to cover his expenses.

Blas even worked overtime, but it didn’t matter. The company never paid overtime – even when their guest workers endured 18-hour days. And to the company’s delight, their guest workers worked despite this abuse. They didn’t want to be fired and sent home in debt. They also couldn’t look for other work, because guest workers can’t legally change jobs. They’re bound, like the indentured servants of a bygone era, to the employers who “import” them.

“We didn’t complain because we were afraid of the company,” Blas said. “Really, you’re afraid. You signed a contract; you have to fulfill it, right? That’s what the law requires.”

So, he kept working, even when his co-workers were fainting and vomiting from the brutal conditions. He kept working when his supervisor became abusive or showed up for work drunk.

He kept working because he had no other choice.

Blas’ story isn’t unique. It happens countless times across this country. When the Southern Poverty Law Center (SPLC) investigated the H-2 guest worker program in 2007, it issued Close to Slavery, a 48-page report filled with stories of exploitation and abuse. When the SPLC updated the report in 2013, it found the program is still rife with abuse despite modest reforms.

The SPLC has also filed lawsuits on behalf of thousands of guest workers, exposed civil rights violations and pushed for meaningful immigration reform that can address not only the nation’s broken guest worker program but our entire immigration system.

But amid our current immigration debate, one thing is clear: Any legislation that creates a new guest worker program or expands the current one must include protections to end the sort of abuse Blas endured. Several plans, including Senate bill 744, contain important protections for U.S. and foreign workers that must be preserved as the legislation moves forward. 

Still, the Senate bill lacks safeguards that are crucial to leveling the playing field for guest workers. Many workers, despite being present legally on visas, would be denied access to legal services dedicated to the poor and funded by the Legal Services Corporation (LSC).

All low-wage workers, including guest workers, should be eligible for LSC-funded legal assistance to protect their basic rights. Guest workers need access to justice. They need a lawyer’s help if their boss won’t pay all the hours they’ve worked.

Likewise, guest workers need access to federal court.

It’s encouraging that S. 744 has important protections for domestic workers and foreign workers, including a right to the prevailing wage as well as anti-retaliation and discrimination provisions. But a right without a remedy is like having no right at all. The current bill does not provide guest workers with a private federal right of action that would allow them to recover wages and hold employers accountable for abuse, discrimination and retaliation.

It’s also encouraging that S. 744 has provisions regulating foreign labor recruiters. It is essential that these provisions remain intact. As Blas’ experience shows, many workers are pushed into debt before they arrive in the United States, leaving them vulnerable to exploitation that can rise to the level of human trafficking. Regulation can help end the worst abuses, but guest workers need to be able to sue in federal court to hold employers accountable when they benefit from abusive recruitment practices.

The issue of permanency must be addressed as well. S. 744 grants a path to citizenship for guest workers with an H-2B visa for seasonal, non-agricultural work or a new W visa, which will be granted to year-round workers in low-skill jobs. Congress must preserve this path.

But all guest workers should have an opportunity to apply for permanency in the United States and a path to citizenship. The path to permanency and citizenship must be broad and fair – reflecting the American value that those who contribute to this nation’s success, such as Blas, are equal members of our society.