The most fundamental problem with guestworker programs, both historically and currently, is that the employer — not the worker — decides whether a worker can come to the United States and whether he can stay.

Because of this arrangement, the balance of power between employer and worker is skewed so disproportionately in favor of the employer that, for all practical purposes, the worker’s rights are nullified. At any moment, the employer can fire the worker, call the government and declare the worker to be “illegal.”

Otto Rafael Boton-Gonzalez, an H-2B forestry worker from Guatemala, has seen first-hand how this works. “When the supervisor would see that a person was ready to leave the job because the pay was so bad, he would take our papers from us. He would rip up our visa and say, ‘You don’t want to work? Get out of here then. You don’t want to work? Right now I will call immigration to take your papers and deport you.’” 

Many abuses, perhaps most abuses of guestworkers, flow from the fact that the employer literally holds the deportation card. One of the most chronic abuses reported by guestworkers concerns the seizure of identity documents — in particular passports and Social Security cards.35 In many instances, workers are told that the documents are being taken in order to ensure that they do not leave in the middle of the contract.

The SPLC has received dozens of reports of this practice and has, in the course of its legal representation of workers, confirmed that it is routine.36 While some employers state that they hold the documents for the purpose of “safekeeping,” many have been quite candid in explaining that there is a great risk that workers will flee if the documents are not held. One employer sued by the SPLC stated in her deposition that the company kept workers’ Social Security cards in the office because “if they have their Social Security card, they’ll leave.”37

One SPLC client, an H-2 worker recruited to work in the southeastern United States, reported, “Our employers immediately confiscated our passports. They told us they were going to apply for our visa extensions and Social Security cards. The employers held onto our documents for months, even after telling us that our extensions had been granted. The grower threatened to report us to Immigration if we continued to ask for our passports back.” Without possession of their documents, the workers were fearful of leaving the farm. The worker continued, “Since I couldn’t prove that I was in the country legally, I was nervous to even go out to the store for fear that I would be stopped by the police.” The employers played on the workers’ fears, telling them that they were at risk of getting detained and deported if they went out into the community without documents.

There is no realistic mechanism for workers to recover their identity documents. Numerous employers have refused to return these documents even when the worker simply wanted to return to his home country. The SPLC also has encountered numerous incidents where employers destroyed passports or visas in order to take away workers’ proof of legal status. When this happens, there is little likelihood of a worker obtaining assistance from local law enforcement officials. In many jurisdictions, lawyers representing workers advise them to avoid calling police because they are more likely to take action against complaining workers than against the employer.

Living in Fear

In other instances, employers have quite explicitly used the threat of calling U.S. Immigration and Customs Enforcement as a means of asserting control over workers. For example, in one case where workers refused to work until they received their pay after not having been paid in several weeks, the employer responded by threatening to call Immigration and declare that the workers had “abandoned” their work and were thus “illegal” workers. Such threats are common and are made possible by a system under which visas are issued solely for employment with the petitioning employer.38

In the Signal case, when workers organized to demand better conditions, Signal called a meeting of all the guestworkers. As one worker put it, “One of the company officials said that Signal was meeting all of our needs and that if we continued complaining, they would send us back to India.” At around 5 a.m. the next morning, Signal employees and security guards grabbed four people, including two workers identified as leaders of the organizing efforts. Signal’s senior vice president said in a deposition that the plan was, “don’t give them any advance notice, take them all out of the line on the way to work, get their personal belongings, get them in a van and get their tickets and get them to the airport and send them back to India.” One of the security guards stated in a document provided during the discovery process that Signal’s goal was to make an example of these workers so that guestworkers understood they were not to make trouble. The plan was disrupted only when one of the rounded-up workers attempted suicide, and the police responded to the ensuing uproar.

Even when employers do not overtly threaten deportation, workers live in constant fear that any bad act or complaint on their part will result in their being sent home or not being rehired. Fear of retaliation is a deeply rooted problem in guestworker programs. In 1964, the Mexican-American labor organizer and writer Ernesto Galarza found that despite the prevalence of workers’ rights violations, only one in every 4,300 braceros complained.39 In examining the H-2A program in North Carolina, Human Rights Watch found “widespread fear and evidence of blacklisting against workers who speak up about conditions, who seek assistance from Legal Services attorneys, or who become active in [the union].”40 The North Carolina Growers Association blacklist has been widely publicized. The 1997 blacklist, called the “1997 NCGA Ineligible for Rehire Report,” consisted of more than 1,000 names of undesirable former guestworkers.41

After H-2B workers represented by the SPLC filed a class action lawsuit against the U.S. forestry company Eller and Sons Trees, Inc. for massive wage violations, the company took advantage of the workers’ fear of retaliation to coerce them into withdrawing from the case. Only days before the deadline for class members to withdraw, a company agent flew to Guatemala to attend a hiring meeting for prospective workers. At this meeting, the company agent informed the workers that the lawsuit would hurt both the company and the workers and presented them with forms to opt out of the case. Fearing that the company would not rehire them if they did not sign, the majority of the workers complied. As Irlamar Aguilar Martinez, a class member in attendance, testified, “the American asked who wanted to sue the Eller and Sons company or who didn’t want the company to come to an end. People voted by raising their hand as the American and [the Guatemalan recruiter] observed.” Never intending to withdraw from the case, Irlamar signed the form because the recruiter told her: “With this the boss will see that you are in need of a visa.” The court later declared the opt-out forms submitted by workers at the hiring meeting invalid because they had been improperly obtained.

Despite modest reforms to the H-2 program intended to prevent these tactics in recent years, fear of retaliation among workers is a constant concern — and one that is warranted. As long as a worker’s visa is tied to a single employer and that employer “holds the deportation card,” guestworkers’ legal rights will, in practice, exist only on paper.