U.S. Rep. Charles Rangel, speaking on CNN’s Lou Dobbs Tonight, Jan. 23, 2007
Quoted in Majka, Theo J. and Patrick H. Mooney, Farmers’ and Farm Workers’ Movements (Twayne Publishers 1995) 152
Cindy Hahamovitch, The Fruits of their Labor: Atlantic Coast Farmworker and the Making of Migrant Poverty, 1870-1945 (University of North
Carolina Press) 168
Ernesto Galarza, Stranger in Our Fields, Joint United States-Mexico Trade Union Committee, Washington, D.C., 1956.
“Migrations: A Collection of Views on Mexican Migration to the United States,” Center for Latin American Studies, University of California-Berkeley, available at http://socrates.berkeley.edu:7001/Outreach/education/migrations2003/inde...
The word “bracero” is derived from the Spanish word for “arm,” as in a farm hand or labor for hire. It refers both to the guestworker program operated between 1942 and 1964 and to individual, legally hired Mexican farm workers who participated in the program.
Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America, (Princeton University Press 2002) p. 173
Cindy Hahamovitch, The Fruits of their Labor: Atlantic Coast Farmworker and the Making of Migrant Poverty, 1870-1945 (University of North Carolina Press) 168
David Bacon, Fast Track to the Past: Is a New Bracero Program in Our Future? (and what was life like under the old one) published at http://dbacon.igc.org/Imgrants/17FastPast.htm (2002)
Alex Wilkenson, Big Sugar: Seasons in the Cane Fields of Florida (Alfred A. Knopf) (1989)
David Bacon, “Be Our Guests,” The Nation, September 27, 2004
8 U.S.C. § 1184(g)(1)(B)
Department of State, NonImmigrant Visas Issued, 2007-2011, available at www.travel.state.gov/pdf/NIVClassIssued-DetailedFY2007-2011.pdf; Department of State, Nonimmigrant Visa Issuance by Visa Class and Nationality, FY 2011, available at www.travel.state.gov/pdf/FY11NIVDetailTable.pdf
There are other guestworker programs that authorize employers to import temporary workers (for example, the H-1B program for more highly skilled workers). Additionally, several visa programs have become de facto guestworker programs although this is not their intended purpose, such as the J-1 Exchange Visitor Program and the A-3, G-5, and B-1 visas associated with domestic workers. This report focuses only on H-2 workers because congressional proposals for large-scale guestworker expansion have generally aimed to replicate the experiences of the H-2 program.
8 U.S.C. §1188(a)(1); 1101(a)(15)(H)(ii); 20 C.F.R Part 655
20 C.F.R. § 655.122(l). The “adverse effect wage rate” (AWER) is the minimum wage rate that H-2A workers must be paid so that their employment does not have an adverse effect on the wages and working conditions of U.S. workers. DOL calculates the AWER annually.
45 C.F.R. § 1626.11
73 Fed. Reg. 78,020-01 (Dec. 19, 2008)
77 Fed. Reg. 10038-01 (Feb. 21, 2012); 20 C.F.R. Part 655, Subpart A (2012)
See, e.g., Louisiana Forestry Ass’n, Inc. v. Solis, No. 11-7687, 2012 WL 3562451 (E.D. Pa. Aug. 20, 2012); Bayou Lawn & Landscape Servs., et al. v. Solis, No. 3:11cv183 (N.D. Fla. Filed Apr. 26, 2012) (enjoining DOL from implementing the 2012 H-2B regulations); Bayou Lawn & Landscape Servs., et al. v. Solis, No. 3:11cv445 (N.D. Fla. Filed Sept. 11, 2011).
See supra, Part 7
David v. Signal International, LLC, E.D. La., Case No. 08-1220, filed March 8, 2008.
See Perez-Benites v. Candy Brand, LLC, 1:07-CV-1048, 2011 WL 1978414 (W.D. Ark. May 20, 2011)
See, e.g., Centro Independiente de Trabajadores Agrícolas et al., Jornaleros Mexicanos en EU Con Visa: Los Modernos Olvidados 29 (2012), www.globalworkers.org/our-work/publications/jornaleros-safe (94.5% of H-2A workers interviewed were recruited by a contractor or recruiter) [hereinafter “Jornaleros”]; Centro de los Derechos del Migrante Inc. & Am. University’s Washington College of Law, Picked Apart: The Hidden Struggles of Migrant Worker Women in the Maryland Crab Industry 14 (2010), www.cdmigrante.org/wp-content/uploads/2012/01/PickedApart.pdf (99% of H-2B crab workers interviewed obtained the job through a recruiter) [hereinafter “Picked Apart”]
See, e.g., 20 C.F.R. § 655.122(h) (H-2A); see also Arriaga v. Florida Pacific Farms, 305 F. 3d 1228, 1237 (11th Cir. 2002) (H-2A workers); Morante Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163, 1165-66 & n .2 (11th Cir. 2003)(H-2B workers); but see Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 403 (5th Cir. 2010) (employers do not have to reimburse H-2B workers for the transportation, visa, and recruitment costs workers paid to secure employment in the United States)
See GAO, H-2B Visa Program: Closed Civil & Criminal Cases Illustrate Instances of H-2B Workers Being Targets of Fraud & Abuse 4 (2010), www.gao.gov/products/GAO-10-1053 [hereinafter “GAO Report”]
For more in-depth information on recruitment abuses in guestworker programs, see International Labor Recruitment Group, The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse (2013)
See Picked Apart, supra
Colorado Legal Servs. Migrant Farm Worker Div., Overworked & Underpaid: H-2A Herders in Colorado (2010), http://users.frii.com/cls/Overworked%20and%20Underpaid.pdf
Farmworker Justice, No Way To Treat A Guest: Why the H-2A Agricultural Visa Program Fails U.S. & Foreign Workers (2011), available at http://farmworkerjustice.org/resources/reports [hereinafter “No Way To Treat A Guest”]
Picked Apart, at 1.
See U.S. Department of State, Trafficking in Persons Report, 338 (2010), www.state.gov/../142979.pdf (“Vulnerabilities remain even for legally documented temporary workers who typically fill labor needs in the hospitality, landscaping, construction, food service, and agricultural industries. In some human trafficking cases, workers are victims of fraudulent recruitment practices and have incurred large debts for promised employment in the United States, which makes them susceptible to debt bondage and involuntary servitude.”)
20 C.F.R. §655.135(j) (H-2A); 20 C.F.R. § 655.22(g)(2),(j) (2008) (H-2B)
See, e.g., Global Workers Justice Alliance, Why transparency in the Recruitment Supply Chain is Important in the Effort to Reduce Exploitation of H-2 workers: A Global Workers Alliance Position Paper 14-15 (2011), www.globalworkers.org/sites/default/files/recruiter_supply_chain_disclos...
Unlike H-2A workers, those with H-2B visas must pay Social Security and Medicare taxes but have no prospect of receiving benefits under the programs. They also are subject to federal income tax withholding.
See also Antigo v. Lombardi, 1:11-CV-408, 2012 WL 4468503 (S.D. Miss. Sept. 25, 2012); Camayo v. John Peroulis & Sons Sheep, Inc., No. 10-CV-00772, 2012 WL 4359086 (D. Colo. Sept. 24, 2012); Ramos-Madrigal v. Mendiola Forestry Serv., LLC, 799 F. Supp. 2d 958, 960 (W.D. Ark. 2011); Asanok v. Million Express Manpower, Inc, No. 5:07cv00048 (E.D.N.C. Aug. 24, 2007); Aguilar v. Imperial Nurseries, No. 3:07-CV-193 (D. Conn. Feb. 8, 2007)
Deposition of Sandy Thomas, page 77, Recinos-Recinos v. Express Forestry, E.D. Louisiana, Case No. 05-1355
See, e.g., Camayo v. John Peroulis & Sons Sheep, Inc., No. 10-CV-00772, 2012 WL 4359086 (D. Colo. Sept. 24, 2012); Magnifico v. Villanueva, 783 F. Supp. 2d 1217, 1222 (S.D. Fla. 2011); David v. Signal Int’l, LLC, 257 F.R.D. 114, 126 (E.D. La. 2009)
Ernesto Galarza, Merchants of Labor: The Mexican Bracero Story (Rosicrucian Press (1964) at 17; See also Michael Holley, Disadvantaged by Design: How the Law Inhibits Agricultural Guestworkers from Enforcing Their Rights, 18 Hofstra Lab. & Emp. L.J. 575, 585 (2001)
Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States Under International Human Rights Standards (ILR Press) 2000 at 148
David Bacon “Be Our Guests,” The Nation, September 27, 2004
See, e.g., Diaz v. Quality Crab Co., Inc., 2:10-CV-15-H, 2011 WL 4498939 (E.D.N.C. Sept. 27, 2011); Covarrubias v. Capt. Charlie’s Seafood, Inc., 2:10-CV-10-F, 2011 WL 2690531 (E.D.N.C. July 6, 2011); Gaxiola v. Williams Seafood of Arapahoe, Inc., 776 F. Supp. 2d 117, 125 (E.D.N.C. 2011); Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696, 703 (E.D.N.C. 2009); see also Picked Apart, supra
See, e.g., Teoba v. Trugreen Landcare, LLC, 769 F. Supp. 2d 175, 177 (W.D.N.Y. 2011); Rivera v. Brickman Group, Ltd., CIV. 05-1518, 2008 WL 81570 (E.D. Pa. Jan. 7, 2008); Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d 411, 413 (D. Del. 2007)
See, e.g., Hernandez-Luna v. W.K. Events, Inc., 6:12-CV-575-ORL-28, 2012 WL 4017469 (M.D. Fla. Aug. 22, 2012); Cuomo v. Dreamland Amusements, Inc., 08 CIV.7100, 2008 WL 4369270 (S.D.N.Y. Sept. 22, 2008); see also Marnie Einstadt, State Fair Vendor Abused Workers from Mexico, The Post-Standard, Apr. 17, 2011, www.syracuse.com/news/index.ssf/2011/04/vendor_abused_mexican_workers.html
See, e.g., GAO Report, at 4; Jornaleros, at 36 (62% of Mexican H-2A workers interviewed for study were not reimbursed for transportation costs)
See, e.g., Picked Apart, at 2 (54% of Maryland crab workers interviewed reported paycheck deductions for knives, gloves, and other basic tools and safety equipment)
Clark W. Lantz, et al., A Guide to the Care and Planting of Southern Pine Seedlings, United States Department of Agriculture, Forest Service Southern Region, Management Bulletin R8-MB39, Revised October 1996, page 24.
See Perez-Benites v. Candy Brand, LLC, 1:07-CV-1048, 2011 WL 1978414 (W.D. Ark. May 20, 2011)
See, e.g., Salinas-Rodriguez v. Alpha Services LLC, No. 3:05-CV-440WHB-AGN, U.S. District Court for the Southern District of Mississippi, Jackson Division; Recinos-Recinos v. Express Forestry, No. 05-1355”I”(3), U.S. District Court for the Eastern District of Louisiana; Rosiles-Perez v. Superior Forestry, No. 1:06-CV-0006U.S. District Court for the Middle District of Tennessee, Columbia Division
De Leon-Granados v. Eller and Sons Trees, Inc., No. 1:05-CV-1473-CC, U.S. District Court for the Northern District of Georgia, Atlanta Division
David v. Signal International, LLC, E.D. La., Case No. 08-1220, filed March 8, 2008
Bruce Goldstein, Guestworker Policy: H-2A Program Adverse Effect Wage Rates Are Too Low, Farmworker Justice, May 2006, available at
www.fwjustice.org/Immigration_Labor/H2abDocs/FAQAEWR.doc; see also No Way To Treat A Guest, at 15
Daniel Costa, H-2B Employers & Their Congressional Allies Are fighting Hard to Keep Wages Low for Immigrant & American Workers (Oct. 6, 2011), www.epi.org/publication/2b-employers-congressional-allies-fighting/
See 76 Fed. Reg. 3452, 3463, 3477 (Jan. 19, 2011)
See GAO Report, at 10
Office of Inspector General, Evaluation of the North Carolina Growers Association, Mar. 31, 2004; see also Leah Beth Ward Lax Regulations Trouble Critics of Labor Pipeline, Desperate Harvest, Charlotte Observer, November 1, 1999
See, e.g., Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696, 716-18 (E.D.N.C. 2009)
Jornaleros, 34, 45 (Study found that of all Mexican H-2A workers interviewed, 77% received written a work offer, but only 21% could understand what the contract said; 66% of workers felt pressured to sign a contract that was not in Spanish)
See, e.g., GAO Report, at 4 (in 8 of 10 cases reviewed employers submitted fraudulent information to the government agencies responsible for regulating the H-2B program, including misclassifying workers’ duties to avoid paying the prevailing wage rate)
Interview with Mary Lee Hall, Legal Aid of North Carolina
Bureau of Labor Statistics, Census of Fatal Occupational Injuries 14 (2011), www.bls.gov/iif/oshwc/cfoi/cfch0010.pdf (Forestry, agriculture, fishing, and hunting rank one and construction ranks fourth in the fatality rate)
Id.; see also Bureau of Labor Statistics, Fatal Occupational Injuries, 2011 3, www.bls.gov/iif/oshwc/cfoi/cfoi_rates_2011hb.pdf
See Sarah Cleveland, Beth Lyon and Rebecca Smith, Inter-American Court of Human Rights Amicus Brief: The United States Violates International Law When Labor Law Remedies are Restricted Based on Workers’ Migrant Status, 1 Sea of J. of Soc. Just. 795 (2003); see also Ashwini Sukthankar, Global Workers Justice Alliance, Visas, Inc. 49 (2012), www.globalworkers.org/sites/default/files/visas_inc/index.html
Cleveland, Lyon & Smith, supra at 819
Tom Knudson & Hector Amezcua, “The Pineros, Part 1” Sacramento Bee, Nov. 13, 2005
Picked Apart, at 27-29
“Labor broker,” “labor contractor ” and “ job contractor” are used interchangeably
77 Fed. Reg. at 10,051
20 C.F.R. § 655.132
Aguilar v. Imperial Nurseries, No. 3:07CV193 (D. Conn. filed Feb. 8, 2007)
Nina Bernstein, “Federal Lawsuit to Accuse Nursery of Bait-and-Switch with Guatemalan Workers,” The New York Times, Feb. 8, 2007
Housekeeping and cleaners were the fourth most certified occupations for H-2B workers in 2011. See Office of Foreign Labor Certification, Annual Report Oct. 1, 2010 – Sept. 30, 2011, 51 www.foreignlaborcert.doleta.gov/pdf/2011AR_FINAL.pdf
Mark Rockwell, Brazilian Woman Who Brought in Over 1,000 Illegal Aliens in H-2B Visa Fraud, Found Guilty, Nov. 10, 2011, GSN, www.gsnmagazine.com/node/24955
Willoughby Mariano, Foreign Workers Sue Swan and Dolphin, Westin Resorts, Feb. 4, 2010, Orlando Sentinel, http://articles.orlandosentinel.com/2010-02-04/news/os-visa-fraud-invest...
See Antiago, et al. v. Lombardi, et al., No. 11-cv-00408, (S.D. Miss. filed Oct. 28, 2010); Sarmiento, et al. v. The Club at Admiral’s Cove, Inc., No. 9:11-cv-81388 (S.D. Fla. filed Dec. 24, 2011); Magnifico, et al. v. Villanueva, et al., No. 9:10-cv-80771 (S.D. Fla. filed June 30, 2010)
8 U.S.C. § 1101(a)(15)(H)(ii)(b)
GAO Report, at 4, 10-11
EEOC, Hamilton Growers to Pay $500,000 to Settle EEOC Race/National Origin Discrimination Lawsuit, Dec. 13, 2012, available at www.eeoc.gov/eeoc/newsroom/release/12-13-12.cfm
250 F.3d 861 (4th Cir. 2001). For a discussion of this case, see Ruhe C. Wadud, Note: Allowing Employers to Discriminate in the Hiring Process Under the Age Discrimination in Employment Act: The Case of Reyes-Gaona, 27 N.C.J. Int’l Law & Com. Reg. 335 (2001)
See Visas, Inc., at 43
See Olvera-Morales v. Sterling Onions, 322 F. Supp. 211 (N.D.N.Y. 2004)
Equal Employment Opportunity Commission v. Signal International, LLC, Case No. 11-179 (S.D. Miss. filed Apr. 20, 2011); transferred to E.D. La. March 1, 2012, Case No. 12-557 (E.D. La.)
Cited in Lessons from the Fields: Female Farmworkers and the Law, Maria Ontiveros, 55 MELR 157, 168 (2003) (study by Maria Elena Lopez Trevino, The Needs and Problems Confronting Mexican American and Latin Women Farmworkers: A Socioeconomic and Human’s Right Issue (1995)(unpublished on file with author); Maria Elena Lopez Trevino, A Radio Model: A Community Strategy to Address the Problems and needs of the Mexican American Women Farmworkers (1989 MS thesis, Cal State University)
William R. Tamayo, Forging Our Identity: Transformative Resistance in the Areas of Work, Class, and the Law: The Role of the EEOC in Protecting the Civil Rights of Farm Workers, 33 U.C. Davis L Rev. 1075, 1080. (2000)
Irma Morales Waugh, “Examining the Sexual Harassment Experiences of Mexican Immigrant Farmworking Women,” Violence Against Women, January 2010, 8.
Mary Bauer and Monica Ramirez, Injustice on Our Plates: Immigrant Women in the U.S. Food Industry, Southern Poverty Law Center (2010).
Interview with Carol Brooke, North Carolina Justice Center; settlement documents on file with author.
See, e.g., Mexican Workers, www.mexican-workers.com/why-foreign-workers.htm (last visited Jan. 28, 2013)
See, e.g., No Way To Treat A Guest, at 28
See, e.g., Diaz v. Quality Crab Co., Inc., 2:10-CV-15-H, 2011 WL 4498939 (E.D.N.C. Sept. 27, 2011); Bandola, et al. v. Starwood Vacation Ownership, Inc., No. 6:11-cv-3-Orl-31KRS (M.D. Fla. filed Jan. 1, 2011)
Overworked & Underpaid, at 15-16 (85% of H-2B sheep herders interviewed reported that employers did not let them have visitors to the ranch, and 85% interviewed were never allowed to attend a social activity)
Asanok v. Million Express Manpower, Inc, No. 5:07cv00048 (E.D.N.C. Aug. 24, 2007)
Brennan Center for Justice, Trends in Wage and Hour Enforcement by the U.S. Department of Labor, 1975-2004, Economic Policy Brief, No. 3, September 2005.
Office of Foreign Labor Certification, Foreign Labor Certification Annual Report FY 2011, 35, www.foreignlaborcert.doleta.gov/pdf/2011AR_FINAL.pdf.
DOL, Wage & Hour Div., FY 2013 Congressional Budget Justification, 22, www.dol.gov/dol/budget/2013/PDF/CBJ-2013-V2-09.pdf.
DOL, Enforcement Data, Wage & Hour Compliance Action Data,, http://ogesdw.dol.gov/data_summary.php (download report at “whd_whisard.” 2012) (last visited Jan. 31, 2013).
See 20 C.F.R. § 655.182(a) (H-2A program); 20 C.F.R. § 655.73(a) (H-2B program).
OIG Audit – Debarment Authority Should be Used More Extensively in Foreign Labor Certification Programs 3, Sept. 30, 2010, www.oig.dol.gov/public/reports/oa/2010/05-10-002-03-321.pdf.
DOL, Employment & Training Admin., Office of Foreign Labor Certification Program Debarments, www.foreignlaborcert.doleta.gov/pdf/Debarment_List_Revisions.pdf.
Interview with Lori Elmer, Legal Aid of North Carolina.
Recinos-Recinos v. Express Forestry, Inc., 2006 U.S. Dist. LEXIS 2510 (D. La. 2006).