THE AMERICAN PROSPECT

July 20, 2017

 

Can a Revamped Farmworker Visa System Prevent Abuses?

Foreign nationals who work on American farms remain vulnerable to exploitation by employers who rely on a temporary agricultural visa employment program.

 

By Manuel Madrid

 

Four years is a long time to suffer the indignity of unpaid wages and miserable housing. But Martin bit his tongue. A Mexican citizen, Martin came to the United States on an H2A temporary visa for seasonal agricultural workers. Martin’s contract specified that he would be housed and work on a central Texas cattle ranch for $10 an hour. But when he arrived at his destination, there was no ranch, no cattle, and no housing. Instead, the company that recruited Martin and other workers required them to drive out to the mountains near the state’s southwestern border to build barbed-wire fences for $65 dollars a day. Despite freezing nighttime temperatures, he had no choice but to sleep in his pickup truck or an open-air shack.

But almost anything was better than working back in Mexico, where the daily minimum wage is 80 pesos (about $4). He didn’t mind the tough work or the harsh conditions, but as abuses started to pile up, Martin, who took the job to provide for his wife and children back home, decided he couldn’t take it anymore. In 2015, Martin took his employers to court in Texas seeking damages for fraud and wage theft. His attorney, Jacob Wedemeyer, says Martin’s case was “particularly egregious,” but seasonal agricultural workers often suffer terrible abuses when they arrive in the United States.

Martin (his attorney asked that The American Prospect not use his last name to protect his future job prospects) is one of the more than 100,000 workers who enter the country annually under the H2A program, which has been criticized for ignoring the ongoing exploitation of workers. Farmworker advocates have long complained that employers subject laborers to fraud, rape, physical and verbal harassment, and ethnic and gender discrimination.Yet citing labor shortages, Democratic and Republican members of Congress want to see an expansion of the program. But advocates say that before that can happen, federal officials need to launch a comprehensive overhaul of the visa system to address worker mistreatment.

Of the 2.5 million farmworkers in the United States, H2A visa holders currently comprise only about 7 percent of the agricultural workforce. In a sector that relies heavily on undocumented workers (estimates range from 30 percent to 70 percent) the number of H2A visa holders is expected to increase as the Trump administration continues to step up its harsh immigration enforcement policies. “It’s safe to say that, without any reforms, an expansion of the H2A program will only lead to the abuse of more workers,” says Bruce Goldstein, president of Farmworker Justice, a Washington, D.C.-based advocacy group.

For centuries, U.S. farmers have relied on cheap labor provided by temporary seasonal workers and undocumented people. Established in 1952, the H2A visa program is the latest incarnation of the federal braceros (“strong-armed” in Spanish) system. During the two world wars, the federal government allowed Mexican farmworkers to enter the United States to replace American laborers fighting overseas. The United States recruited nearly 70,000 workers during World War I and an estimated two million during World War II.

Under the braceros system, workers frequently received only a portion of the wages they were owed. Employers forced people to work in dangerous conditions and to live in unsanitary, dilapidated housing. Labor Department official Lee G. Williams, who helped administer the braceros program during the Kennedy and Johnson administrations, described the system as “legalized slavery.” Legal protections for workers, such as guaranteed access to medical care, adequate housing, and a minimum wage, existed on paper, but were unevenly enforced, if enforced at all. Many of those abuses still plague the H2A program.

Today, farmers and immigration attorneys say that ramped-up Immigration and Customs Enforcement (ICE) removal activities have scared undocumented immigrants away from the fields, forcing more employers to use the H2A visa program to hire the workers they need.

H2A visa applications spiked in the first few months of the Trump administration. Between January and March, the Department of Labor approved nearly 70,000 farm-job applications, a 36 percent increase over last year. Annual H2A visa approvals have more than doubled over the last decade and some labor economists project that they will quadruple by the end of fiscal 2017.

“What we’re seeing is a definite reaction to increased deportations,” says Laura-Anne Minkoff-Zern, an assistant professor of food studies at Syracuse University. “Farmers want a situation where what they’re doing is legal; that’s where H2A comes in.”

Foreign agricultural workers who apply for visas often find themselves at the mercy of unscrupulous “labor brokers,” hired by employers to recruit laborers to fill temporary farm jobs. These middlemen, usually operating as independent contractors, often deceive workers about where they are headed and the jobs they will perform, charge exorbitant—and illegal— recruitment fees, and engage in human trafficking. The lack of federal oversight allows these “brokers” to fleece incoming guest workers while insulating the employers who initially contracted them from federal scrutiny.

According to a report by the Southern Poverty Law Center, some workers arrive owing as much as $10,000 to labor brokers, only to find they won’t be able to earn enough pay the money back. When dismissal means deportation, a worker is far less likely to complain about exploitative work environments. “Workers are forced to choose between returning home to insurmountable debts or remaining in an abusive work environment,” says Elizabeth Mauldin, policy director of Centro de los Derechos del Migrante, a migrant-rights organization headquartered in Mexico. “They’re risking their livelihoods by speaking out.”

One key reform that farmworkers’ advocacy groups have proposed is a type of portable “guest worker” visa, which allows contract workers to look for other H2A jobs anywhere in the United States. This type of visa would permit employees to challenge employers without fear of deportation, allowing them to simply move on to another job if threatened or abused. The World War I braceros program allowed workers to leave their jobs and search for work with other federally approved employers.

Some agribusinesses have voiced support for this idea. In February, the American Farm Bureau Federation (AFBF), a farmers trade group proposed an “at-will,” or portable, visa. (They also suggested that undocumented workers should be offered permanent legal status after working for a specified period of time in the agriculture sector.)

Agribusinesses and local farmers, who would be the biggest benefactors of an influx of new temporary workers, have called for the H2A program to be streamlined. They argue that current regulations are too burdensome, requiring employers to conduct surveys to establish the prevailing wages for workers and proving they can’t find U.S. workers before they look elsewhere. A 2015 Buzzfeed investigation highlighted the extraordinary measures some employers take to hire H2A workers so they can also avoid payroll and unemployment taxes and other rules.

Opponents of the H2A program argue that it displaces local farmworkers and suppresses wages. Cut off from foreign workers, U.S. farmers would likely have to raise wages that are already at rock bottom, automate their operations, produce less, or some combination of the three. Even so, many farmers would not be able raise wages enough to attract the numbers of people they require to do the arduous work. “It’s a largely a matter of standards that surround the job. Workers don’t receive living wages, and these jobs aren’t easy,” says Minkoff-Zern. “I don’t see U.S. workers getting back to the fields anytime in the near future.”

During the July G20 summit in Germany, President Donald Trump and Mexican President Enrique Peńa Nieto reportedly explored the possibility of creating new avenues for Mexican agricultural laborers to work in the United States. Trump, who has been a vehement opponent of undocumented immigrants and a vocal supporter of restricting legal immigration, also appears determined to carve out an exception for temporary workers. In private meetings with farmers, Trump has assured them that they would have “plenty of access” to foreign workers. “We’re going to have work visas for the farm workers,” he told The Economist in May. “We like those people a lot and we want them to continue to come in.”

But prospects are bleak for H2A reforms. The Labor Department vets agricultural employers seeking farmworker visas and oversees agricultural working conditions. But Trump’s 2018 budget proposal to cut almost $2.5 billion from the department’s already barebones operating budget means that there would be little to no funding available for enhanced enforcement measures, grants for health and safety training, or migrant worker legal services.

Increases in the number of H2A visa holders combined with decreased Labor Department oversight means that migrant farmworkers will likely continue to be victimized by abusive employers and shady labor brokers. Even if Trump meets the demands of the powerful agribusiness sector, his Labor Department officials are unlikely to prioritize enforcing fair working conditions for laborers or other reforms. Until Congress takes the necessary steps to protect foreign workers, a braceros program 2.0 is unlikely to emerge to help people like Martin, who ultimately reached an out-of-court settlement for an undisclosed sum and has since returned to his home state of Coahuila in northern Mexico.

“He was lucky,” Wedemeyer says. “Many H2A workers arrive indebted because of recruiter fees and are forced to suffer until they pay everything back—Martin was able to walk away.”