The United States currently has two guestworker programs under which employers are authorized to import unskilled labor for temporary or seasonal work lasting less than a year: the H-2A program for agricultural work and the H-2B program for non-agricultural work.14

Although the H-2A and H-2B programs offer different terms and benefits, they are similar in one significant way: Both programs permit the guestworker to work only for the employer who petitioned the Department of Labor (DOL) for his or her services. If the work situation is abusive or not what was promised, the worker has little or no recourse other than to go home. That puts the worker at a distinct disadvantage in terms of future opportunities in the United States, because his ability to return during any subsequent season depends entirely on an employer’s willingness to submit a request to the U.S. government. In practical terms, it means that an employee is much less likely to complain about wage violations or other abuses.

Under federal law, employers must obtain prior approval from the DOL to bring in guestworkers. To do that, employers must certify that:

  • There are not sufficient U.S. workers who are able, willing, qualified and available to perform work at the place and time needed; and
  • The wages and working conditions of workers in the United States similarly employed will not be “adversely affected” by the importation of guestworkers.15

The H-2 visas used by guestworkers are for individuals only and generally do not permit them to bring their families to the United States. This means that guestworkers are separated from their families, including their minor children, for periods often lasting nearly a year.

The H-2A Program

The H-2A program provides significant legal protections for foreign farmworkers. Many of these safeguards are similar to those that existed under the widely discredited bracero program, which operated from 1942 until it was discontinued amid human rights abuses in 1964. Unfortunately, far too many of the protections — as in the bracero program — exist only on paper.

Federal law and DOL regulations contain several provisions that are meant to protect H-2A workers from exploitation as well as to ensure that U.S. workers are shielded from the potential adverse impacts, such as the downward pressure on wages, associated with the hiring of temporary foreign workers.

H-2A workers must be paid wages that are the highest of: (a) the local labor market’s “prevailing wage” for a particular crop, as determined by the DOL and state agencies; (b) the state or federal minimum wage; or (c) the “adverse effect wage rate.”16

H-2A workers also are legally entitled to:

  • Receive at least three-fourths of the total hours promised in the contract, which states the period of employment promised (the “three-quarters guarantee”);
  • Receive free housing in good condition and meals or access to a cooking facility for the period of the contract;
  • Receive workers’ compensation benefits for medical costs and payment for lost time from work and for any permanent injury;
  • Be reimbursed for the cost of travel from the worker’s home to the job as soon as the worker finishes 50% of the contract period. The expenses include the cost of an airline or bus ticket and food during the trip. If the guestworker stays on the job until the end of the contract or is terminated without cause, the employer must pay transportation and subsistence costs for returning home;
  • Be protected by the same health and safety regulations as other workers; and
  • Be eligible for federally funded legal services for matters related to their employment as H-2A workers.17

To protect U.S. workers in competition with H-2A workers, employers must abide by what is known as the “fifty percent rule.” This rule specifies that an H-2A employer must hire any qualified U.S. worker who applies for a job prior to the beginning of the second half of the season for which foreign workers are hired.

The H-2B Program

The fundamental legal protections afforded to H-2A workers do not apply to guestworkers under the H-2B program.

The protections afforded to H-2B workers are not as robust as those provided — at least on paper — to H-2A workers. The DOL has attempted to improve these protections in recent years, but its efforts have been consistently blocked by employers and Congress.

For the first time, the DOL enacted substantive regulations that provide some minimal labor protections for H-2B workers in 2008.18 These regulations require employers to recruit U.S. workers before importing temporary workers, pay H-2B workers the prevailing wage rate, and offer H-2B workers a “full-time” job opportunity. Nevertheless, the 2008 regulations lack many of the fundamental legal protections afforded to H-2A workers, such as reimbursement of the workers’ transportation costs to the United States and the “three-quarters guarantee.” The 2008 regulations also provide for a methodology of establishing the H-2B wage rate that the DOL has determined has a depressive effect on U.S. worker wages.

The DOL proposed a new wage regulation in 2011 and new comprehensive H-2B regulations in 2012 that include stronger protections for U.S. and H-2B workers. The 2012 regulations would require employers to engage in more aggressive recruitment of U.S. workers and to treat U.S. and H-2B workers who are similarly employed equally.19

Under the 2012 regulations, H-2B workers:

  • Would be reimbursed for the cost of travel from the worker’s home to the job as soon as the worker finishes 50% of the work period provided in the job order;
  • Would be reimbursed for any visa processing fees in the first work week;
  • Would receive the “three-quarters guarantee”;
  • Could not be charged recruitment fees, which decreases the likelihood of working conditions akin to debt servitude; and
  • Would be expressly protected from human trafficking and retaliation.

These provisions represent a vast improvement over the existing regulations, but, unfortunately, none of them have ever gone into effect. The DOL’s attempts to implement these increased protections for U.S. and H-2B workers have been met with hostility by employers and members of Congress seeking to maintain the H-2B program as a source of cheap, unregulated labor. Employers, in a series of lawsuits, have asserted that the DOL has no authority to regulate employers’ use of the H-2B program at all.20 As a result, workers are not currently protected by any of the important regulations that the DOL has recently issued for the H-2B program.

Moreover, unlike H-2A workers, H-2B workers are denied access to legal and other basic services and benefits. H-2B workers, aside from those who work in the forestry industry, do not have access to federally funded legal services. Additionally, none of the current H-2B regulations require employers to provide workers’ compensation or other injury insurance coverage despite high workplace injury rates in industries that rely heavily on H-2B workers.21

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Efforts to protect vulnerable guestworkers from exploitation have been met with hostility by employers seeking to maintain the H-2 program as a source of cheap, unregulated labor.