Visa Lawyer Blog
Two bills in Congress would gut the H-2A visa program, replacing it with one more open to abuses.
Few would dispute that the existing system is broken. Its failure can be seen most clearly on farms: An estimated 70% of all agricultural workers in the U.S. are here illegally. However, without undocumented workers, crops would rot in the fields. Skeptics need only consider the plight of growers in Alabama and Georgia, who say that new anti-immigrant state laws have put their harvests at risk. Latino migrant workers have fled those states because they fear being deported, and few documented workers or U.S. citizens have applied for the jobs even though they pay above minimum wage.
It is also not difficult to understand why farmers are reluctant to use the existing guest-worker program that allows them to apply for H-2A visas for temporary foreign workers. Growers say the program is expensive and cumbersome, and requires them to predict harvest schedules and labor needs a year in advance. Such requirements make it difficult for them to determine if they have the need for such laborers or not.
This month, Congress stepped in with two proposals to address the situation, but both have several flaws. Reps. Lamar Smith (R-Texas) and Dan Lungren (R-Gold River) have called for gutting the H-2A visa program and replacing it with one that would roll back existing labor protections for U.S. and foreign workers and make it harder to detect abuses.
Rep. Smith’s bill would allow up to 500,000 temporary guest workers into the country annually. But it would eliminate the current requirement that guest workers be paid at the same rate as the average farmworker, and require instead that they be paid the average of what the lowest third of agricultural workers earn. Some say the effect would be to lower the average wage for all workers, which clearly favors Growers at the expense of laborers already struggling to make a living.
Perhaps the most troubling part of the bill is a provision that wage disputes be subject to binding arbitration. Smith says it’s intended to reduce frivolous litigation. But forcing temporary workers, who earn little more than the minimum wage, to pay for arbitration while barring them from recouping those costs if they win would essentially make it too expensive to fight abuses. Currently, workers can sue for back wages and punitive damages. This serves as a disincentive to withholding wages.
Lungren’s proposal would require guest workers to pay for their own housing and transportation costs. Growers would no longer have to pay workers the prevailing wage, but only the federal minimum wage. And workers would have an amount equivalent to the Social Security tax deducted from their paychecks — money they could recover only when they returned home and demonstrated to U.S. consular officials that they had complied with the terms of their visas. The one strength of Lungren’s bill is that workers would not be tied to one employer but could move from farm to farm.
Both bills would shift oversight of the guest-worker program from the Labor Department to the Department of Agriculture, which has no experience investigating workers’ financial claims. This would cause the Department of Agriculture to require more resources to handle such claims if the new bill’s program were to be abused by employers.
Both bills are not likely to succeed in committee because of opposition from growers, a crucial GOP constituency with deep pockets. Growers don’t want to see their labor supply threatened. If Washington really wants to help growers and treat workers fairly, it ought to revive the Agriculture Job Opportunities, Benefits and Security Act. That bill would allow farmworkers who are already here to legalize their status if they agree to pay a fine and continue to work in the fields for at least three years.