Guestworker programs have no history of working well for the workers because they lack legal protections, the right to quit and stay in the country, and access to legal services. For whatever labor or immigration problems we have in this country, there is no room for guestworker programs as part of the solution.
H-2B workers are historically the least protected, according to the Southern Poverty Law Center, or SPLC. On paper, H-2A workers are entitled to a list of protective regulations that H-2B workers aren’t. These regulations included access to federally funded legal services for employment issues, Social Security tax exemption and free housing. The new 2015 regulations issued by DOL and DHS provide protections against employer retaliation, reimbursement for travel to the U.S. and a guarantee of three-fourths of the hours in the job contract. Congress decided against funding enforcement of the three-fourths rule.
These regulations specifically ban recruitment fees and employer retaliation to protect H-2B workers from labor trafficking scenarios such as debt bondage. In the past, H-2B workers were in danger before they even leave home, the SPLC says. Workers would be subjected to debt bondage after paying recruitment fees and transportation costs. But other structural faults still place H-2B workers at risk. Workers are unauthorized to seek employment other than what’s printed on their visa, regardless of abuse or working conditions. Additionally, employers double as immigration sponsors and may easily retaliate against workers if they protest wages or working conditions, according to the ACLU.
In the Philippines, governing agencies are supposed to protect guest workers from illegal practices by recruitment agencies. But overseas employment is a large industry. Hundreds of employment agencies exist to assist millions of Filipino workers. And Filipino Migrant Center’s Concepcion has seen enforcement fail against illegal practices such contract fraud that add to abuse and trafficking.
It’s possible for U.S. law enforcement to work against traffickers by coordinating with international attachés and host governments, but “it’s tough to hold people accountable. We are dealing with a different set of laws,” says Special Agent Erik Breitzke of the U.S. Immigration and Customs Enforcement agency.
Trafficking in the Philippines is a result of much larger issues, such as poverty and the lack of opportunities, according to Alex Montances, a Community Organizer at the Filipino Migrant Center.
“Some of these human traffickers are also, because of the same root problems, turning to human trafficking,” he says, “so they can support themselves and support their families.”
Back in the U.S., effective governmental oversight of the H-2B program is extremely lacking, according to the ACLU. Once workers are on the job, the Department of Labor is responsible for checking up on workplace conditions, but it only has 1,000 inspectors responsible for all 135 million U.S. workers nationwide, the DOL noted in a statement to BuzzFeed News. H-2B visas alone are capped at 66,000 per year. Additionally, while the DOL identifies certain H-2B jobs as high risk, its workplace enforcement efforts are concentrated elsewhere, according the U.S. Government Accountability Office, or GAO.
Over the past decade employers have systematically violated H-2B regulations because “it’s just too easy,” according to SPLC Staff Attorney Meredith Stewart. Employers often confiscate and withhold immigration documentation, the SPLC finds. Visa petitioners engage in pervasive visa fraud, as documented by the GAO. And Eighty-two percent of the DOL’s H-2B investigations uncovered violations in 2014. Employers owed $2.6 million in back wages to H-2B workers, the DOL reported to BuzzFeed News.
Enforcement is too low and the consequences are too weak to deter violations, Stewart says. Delinquent employers may be suspended from the H-2B program by the DOL for up to three years. Suspension is uncommon and doesn’t always result after abuses and law violations are documented, according to the SPLC. Twenty-five H-2B employers were suspended between 2009 and 2014. And In March 2015, the DOL had let the statue of limitations lapse on more that half its H-2A and H-2B investigations, according to the GAO.
There are lots of reasons for labor exploitation. Certainly in the Philippines or Mexico or Guatemala or wherever, there are lots and lots of reasons why deeply impoverished people are able to be brutally exploited. But the United States does not then have to lend a hand to the exploiters through its own labor and immigration systems. The lack of a robust regulatory capacity by the U.S. government means that the low chances of getting caught and then getting punished gives employers enormous incentive to abuse these workers. Guestworker programs are simply unacceptable. Give people long-term work visas with the chance to quit and move to new jobs is the first step to fixing the problem.