February 25, 2022
The H-2B non-agricultural temporary work visa program leaves workers exposed to widespread abuse and exploitation. Despite the H-2B program’s well-documented structural flaws, the Biden administration and federal legislators have moved to dramatically expand this program — without first instituting protections endorsed by workers and advocates. Migration that Works opposes this approach — which so far has ignored the workers’ needs — and urges U.S. federal agencies and policymakers to protect migrant workers in the H-2 labor migration programs.
Under the Temporary Final Rule (TFR) published earlier this year, the Administration included provisions for what they refer to as “temporary portability flexibility” for migrant workers in the H-2B visa program — in other words, the ability to change jobs, which would also allow them to leave an abusive employer who breaks the law. This promise was illusory.
The Administration gave employers 20,000 additional H-2B visas but did not protect migrant workers with true portability. Under the TFR, employers continue to control the visa, and therefore in practice, employers and labor recruiters hold the power to determine whether and how an H-2B worker can change jobs. While on paper, migrant workers have the ability to change jobs, the TFR requires finding an employer with a job opening, who is willing to file a petition to USCIS on the worker’s behalf. But in practical terms, H-2B workers cannot feasibly find out about other jobs due to limited–and often unavailable–information about existing job opportunities. Many workers are unlikely to be aware that a portability provision exists if their employer doesn’t inform them about it, which an employer has little incentive to do.
Without a viable and transparent mechanism for H-2B workers to find new jobs, this policy ends up exclusively benefiting recruiters and employers, and thus leaves workers behind.
Only weeks after the Administration expanded the H-2B program, a group of senators is now pressing the Administration to do it again by issuing tens of thousands of additional H-2B visas. Disappointingly, a request to increase protections for workers appears nowhere in the senators’ call for more visas, despite the unprecedented health and safety risks workers face during the pandemic. While the Biden administration has acted quickly to provide employers with what they are lobbying for, legal protections for migrant workers in the H-2 program have been unacceptably limited.
Even before the pandemic, abuses in both the H-2A and H-2B visa programs ran rampant and rose to the level of human trafficking, forced labor, indentured servitude, and debt bondage. At a minimum, policymakers must ensure that internationally recruited workers can petition for and control their work visas and immigration status and find and change their jobs and industry sector — a first step towards addressing power imbalances in the workplace.
The government should not expand temporary work visa programs as currently constructed without first strengthening essential labor protections for workers. We urge policymakers to protect freedom of movement for migrant workers, to guarantee the freedom of association and right to organize and collectively bargain without the threat of retaliation, to ensure that workers are not charged recruitment fees, and to improve the limited grievance and access to justice mechanisms that are in place to protect workers in these programs.