Joint comment on USCIS’s newly proposed I-129H2A and I-129H2B forms for Nonimmigrant workers.

Dear Chief Deshommes:

We, the Migration that Works coalition and other worker advocate organizations, submit this joint comment in response to the invitation for comments on the proposed Form I-129H2A, Petition for Nonimmigrant Worker: H-2A Classification, and Form I-129H2B, Petition for Nonimmigrant Worker: H-2B Classification. Migration that Works is a coalition of labor, migration, civil rights, anti-trafficking organizations and academics advancing a labor migration model that respects the human rights of workers. Migration that Works’ members serve hundreds of thousands of H-2B temporary nonagricultural workers and H-2A temporary agricultural workers in the U.S. and in their countries of origin. 

We are pleased with the proposal of the new I-129H2A and I-129H2B forms and view the changes from the current I-129 and H Classification Supplement as a first step in addressing broader flaws in the government’s approach to immigrant and nonimmigrant workers. We also welcome this opportunity by the Department of Homeland Security (DHS), and U.S. Citizenship and Immigration Services (USCIS) to offer further recommendations and revisions to the forms. 

Previously, on May 19, 2021, Migration that Works member organizations—Farmworker Justice, Centro de los Derechos del Migrante, Inc., and Justice in Motion—and other farmworker advocates responded to a call for comments on barriers to agency services (hereinafter the “May 19th Comment”). These advocates urged DHS and USCIS to give temporary visa beneficiaries information about whether an I-129 extension pertaining to them has been submitted, approved, or denied. On June 1, 2021, Farmworker Justice again joined other Migration that Works’ members—Justice in Motion, Justice at Work, Centro de los Derechos del Migrante, Polaris, and others—in submitting comments on the I-129 form as it related to “Extension, Without Change, of a Currently Approved Collection: Petition for a Nonimmigrant Worker” (hereinafter the “June 1st Comment”). Those comments are also annexed below. 

In its current request for comments, DHS and USCIS call for input about “whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;” as well as suggestions that would “[e]nhance the quality, utility, and clarity of the information to be collected.” 

The recommendations below would provide clarity to employers about the obligations that they undertake by signing the petition and the rights of the workers whom they hire. Our suggested revisions to the data collection also help strengthen the functions of the agency by increasing transparency for beneficiaries and advocates and compliance with the H-2 programs by employers. 

Due to the similarities among the fields, sections, language, and questions of the proposed forms, this comment will address both I-129H2A and I-129H2B forms simultaneously, focusing on the following:

  • Notice for beneficiaries about case status
  • Consenting of petitioners to right of access 
  • Transparency, data needs, and digitalization 
  • Recruitment fees and petitioner obligations

Recommendation 1: Insert language to allow beneficiaries to access information about the status of an I-129H2A or I-129H2B petition

USCIS currently limits access to case status information and notice to the petitioning employer only. This practice impedes transparency for workers, who have no avenue to receive direct automatic notice of petition developments and no independent right of access to information about their own case status.  Particularly in cases where workers need information about their extension status, this lack of transparency heightens migrant workers’ vulnerabilities to abuse and labor violations.  The May 19th and June 1st Comments provided examples of how a worker’s lack of access to their case status can have devastating impacts on their lives and the lives of their families.

We recommend that USCIS require petitioners to consent to USCIS and DHS providing automatic notice to named beneficiaries of all relevant Form I-129H2A and Form I-129H2B case status information. This includes at least: (1) whether the I-129H2A and I-129H2B forms were submitted, (2) whether they as workers were named as beneficiaries, and (3) whether petitioners requested an extension or change of employer. 

The following language should be incorporated into Part 7, Petitioner or Authorized Signatories’ Certification in both forms: 

  • The petitioner acknowledges that DHS may provide information related to the status of this petition to the [H-2A/H-2B ]workers named within and waives all, if any, privacy rights related to case status, approval, petitioner name, company or organization name, associated recruiter, beneficiary name, and information about the proposed employment and employer as it pertains to this form notification. If a petition for a visa extension is approved, the petitioner agrees to provide each worker beneficiary with any updated I-94 as soon as practicable after the petitioner receives it.

DHS’s practice of withholding this information from beneficiaries is not mandated by any statute or regulation. As our members have previously noted, USCIS’s own privacy policy guidance and policy manual further support the conclusion that sharing this information with worker beneficiaries would better comport with the agency’s principles.

In the May 19th Comment, Farmworker Justice and signatories note that “[d]isclosing basic information about the status of an I-129 petition would also be in accordance with DHS privacy principles. The Department’s policy is to treat ‘all persons, regardless of  immigration status, consistent with the Fair Information Practice Principles (FIPPs).’ Among the FIPPs is the principle of Individual Participation, which provides that ‘DHS should involve  persons in the process of using their personal information, and they may always request  information about themselves[.]’” To comply with this principle, DHS should correct its current practice of denying worker beneficiaries access to information about their own case status.

Workers and representatives should have access to an appropriate forum in which they can inquire whether they have active pending cases where they are named beneficiaries and the status of their petition. Given the significant limitations involved in sending notice to H-2 workers about case status updates via mail to their U.S. address, which is usually employer-controlled and transitory, the agency should also make case status information readily available in response to inquiries by workers and their representatives. 

In order to best serve this population, the agency should permit and encourage workers to make these inquiries through the channels and platforms that are most accessible to them. In addition to a traditional web portal tool, our extensive experience serving H-2 workers has demonstrated that a telephone hotline as well as a WhatsApp and/or Messenger chat line would best allow workers with limited computer access to reach out to the agency with case status and other inquiries.

Recommendation 2: Require employers to grant right of access to worksites as part of the form approval process

Guestworkers in the H-2 program often live in isolated areas with little access to transportation, making it difficult for them to access healthcare and legal and other service providers except by receiving visits to their worksites or employer-owned or employer-facilitated housing. During the pandemic, workers’ isolation has exacerbated their vulnerabilities. In the wake of the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, employers have denied health departments and community health workers, as well as worker organizations, access to migrant workers who would benefit from their services, including vaccination and rights information. The situation of internationally recruited H-2 workers is not addressed by the Cedar Point case, and governments and courts have recognized migrant workers’ rights to access information and services provided by advocates, government officials and service providers at worksites and labor camps. Given the benefit afforded to petitioners, combined with vulnerabilities of the beneficiary population, requiring employers to consent to visits may help ensure that migrant workers’ rights to access information and services are better protected.

To ensure the protection of migrant workers’ rights, we recommend amending the proposed first sentence in Part 6, Item 15 of Form I-129H2A and Part 7, Item 14 of Form I-129H2B to read as follows:

  • The [H-2A/H-2B] petitioner requesting this benefit and each employer consent to allow government agencies and nongovernmental organizations access to H-2 housing and the sites where the labor is being performed for the purpose of determining compliance with [H-2A/H-2B] requirements and otherwise addressing the well-being, safety, and health of the beneficiaries of this petition and workers in corresponding employment.

Given the prevalence of abuse at isolated H-2 worksites and housing, the federal government’s interest in enforcing the program’s rules would be well served by clarifying workers’ right to receive visits from advocates, service providers, and state and local government officials. The agency should require petitioners to acknowledge that they will permit these visits as a condition of hiring workers through the H-2 program. 

Recommendation 3: Make Form I-129H2A and Form I-129H2B data readily accessible to advocates and workers

As USCIS updates the I-129 forms, the systems it implements to process the new information collected should ensure that the maximum amount of data can be made public in a timely fashion. The proposed form collects important information, such as more detailed data on recruitment agents and the companies associated with H-2A worksites, that should be made available to the public. 

As many fields as possible should be available online and in languages accessible to workers. At a minimum, DHS should digitize the following fields and make them readily available at a centralized, easy-to-access digital location in languages accessible to workers and advocates:

Information TypeI-129H2AI-129H2B
Petitioner Name, Organization, Address Part 1: Items 1, 3, 4, 6Part 1: Items 1, 3, 4, 6
Beneficiary Nationality and Gender (where named)Part 3: Items 1, 7, 14Part 3: Items 2, 8, 15
Processing Consulate and Petitioner Debarment HistoryPart 4: Items 1, 15Part 5: Items 1, 15
Job Title, ETA Case Number, Nature of Employment, Job Worksites (and associated organizations), Wages, and Dates of EmploymentPart 5: Items 1-4, 6-8, 14, 16Part 6: Items 1-3, 8-10, 14, 16
Recruiter InformationPart 6: Items 1-4Part 7: Items 1-3

Recommendation 4: Keep “Certification Regarding Prohibited Fees” and promote effective enforcement

We are encouraged by the proposed addition of language requiring petitioners to attest to understanding that worker fees are prohibited; to attest to understanding that employers are liable for any fees unlawfully charged to workers; and to affirm that all recruiters and third-party agents have been disclosed. These attestations are important and vital additions to the forms as they clarify and strengthen language from the current H Classification Supplement, and they must be retained for the final form.

Workers on temporary work visas who arrive indebted to the workplace are more likely to remain in abusive workplace conditions and suffer from economic coercion. Recruitment itself is often a convoluted process, and fraud, debt, and coercion in recruitment lie at the root of much of the abuse experienced by workers once at their worksites in the United States.

For instance, in 2020, Migration that Works chair organization Centro de los Derechos del Migrante surveyed 100 recent and current H-2A migrant workers who worked all over the United States and found that more than a fourth of them had paid recruitment fees. Similarly, a report on the H-2B seafood industry in Maryland found that H-2B migrant worker women had ceased paying fees, but recruiters had found ways to ensnare workers into paying hefty sums for other products at the time of recruitment. 

As the H-2A program continues to grow and the Administration undertakes efforts to expand both H-2 programs in Central America, it is even more important to create and enforce strong recruitment protections in these programs. We support adding this language, and we urge the agency to enforce the penalties it describes, including denying future applications from petitioning employers who either directly, or through their recruiters, require workers to pay fees. 

Conclusion

We acknowledge and appreciate the interest DHS has demonstrated in deterring abuses and increasing compliance in the H-2 guestworker programs. Our suggestions align with the agency’s priorities, and incorporating them will strengthen the I-129H2A and I-129H2B forms by improving employers’ compliance and protecting workers from bad-faith employers’ abuse of the H-2 visa programs. 

We thank you for considering our comments and urge you to incorporate them into the final forms.   

Sincerely,

Migration that Works

With the support of the following organizations: Alianza Nacional de Campesinas, Texas RioGrande Legal Assistance, UFW Foundation

  1.  See Reyes-Trujillo v. Four Star Greenhouse, Inc., 513 F. Supp. 3d 761 (E.D. Mich. 2021) (demonstrating how bad-faith employers can exploit this information gap to take advantage of H-2A workers).
  2.  594 U.S. ___, 141 S.Ct. 2063 (2021).
  3. See Migration that Works, The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse (2013), at https://migrationthatworks.files.wordpress.com/2020/01/the-american-dream-up-for-sale-a-blueprint-for-ending-international-labor-recruitment-abuse1.pdf.
  4. Centro de los Derechos del Migrante, Ripe for Reform: Abuse of Agricultural Workers in the H-2A Visa Program 21 (2020), at https://cdmigrante.org/wp-content/uploads/2020/04/Ripe-for-Reform.pdf.
  5. Centro de los Derechos del Migrante, Breaking the Shell: How Maryland’s Migrant Crab Pickers Continue to Be “Picked Apart” at 9 (2020), at https://cdmigrante.org/wp-content/uploads/2020/09/Breaking-The-Shell.pdf.

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