May 17, 2022
Every worker should be able to leave a job for any reason without fearing that their employer will retaliate against them or that they will be barred from employment elsewhere. This fundamental principle of workers’ mobility is enshrined in US anti-retaliation laws and international labor mobility frameworks. Nevertheless, the H-2A and H-2B programs currently prevent most workers from leaving one job and finding another because they tie these workers’ visas to a single employer.
Workers with abusive employers face an impossible choice in the H-2 visa programs—continue to work in dangerous, unlawful conditions or risk losing their job, visa, and work authorization in the United States. In some circumstances, workers face large fees or other serious consequences from recruiters for quitting an H-2 position.1 While the H-2A and H-2B programs differ in important ways, all H-2 workers are exceptionally vulnerable to abuse because the programs prevent mobility. Given the recent, rapid expansion of both programs, the need to ensure mobility mechanisms that work for workers exist is greater than ever.
THE DEPARTMENT SHOULD ALTER ITS PAST AND EXISTING PORTABILITY PROVISIONS TO BETTER PROTECT WORKERS.
Over the past two years, the Department of Homeland Security (DHS) has issued Temporary Final Rules (TFRs) that purport to provide “portability” for workers with H-2B visas. Similarly, in 2020, DHS issued multiple TFRs that extended “flexibilities” to petitioners seeking H-2A workers. All of these TFRs make the same basic change: they allow petitioners to begin employing workers as soon as an H-2 petition is
filed, before USCIS has approved it. By basing visa status on the date of the petition filed by an employer, the TFRs do little to strengthen the power of workers. In theory, portability should mean workers can leave one job to seek another. But in practice, portability under the TFR gives employers additional flexibility to hire workers they have already found without giving workers any independent protection that would provide them the time or access to the information they need to use the TFRs’ portability provision. Indeed, in the hundreds of calls Migration that Works member Centro de los Derechos del Migrante, Inc. has fielded from workers in the past year and in Farmworker Justice’s consultations with H-2A legal service providers across the country, we are not aware of a single worker who has left an H-2 employer and found another H-2 job under these portability provisions.
What barriers have prevented workers from using the TFRs’ portability provisions? Simply put, workers can’t access jobs or use portability provisions they don’t know about, and the TFR provisions, as written, do not provide workers adequate time to find and connect with new employers. DHS, the
1 Centro de los Derechos del Migrante, Inc. (CDM) has received several phone calls from H-2 workers who report that recruiters have forced them to pay large breach fees of up to thousands of dollars for quitting early. Any forthcoming regulation should clarify that any penalties for workers who do not complete their contracts constitute prohibited fees.
Department of Labor (DOL), and the Department of State (DOS) don’t share and publish real-time information about available H-2B jobs, so workers and advocates can’t learn about them. Under the current portability provision, workers must wholly rely on employers, waiting for them to offer a job and submit an H-2 petition to change jobs. And workers can’t easily leave an H-2 employer without the assurance of continued work authorization and a way to earn income in the period between H-2 jobs. In our experience, workers are generally not aware that the TFR’s portability provision exists.
In a more just labor migration system, workers would be able to self-petition for good jobs with high-road employers, and they and their family members would have pathways to permanence in the United States. The H-2 programs lack these protections for workers and prioritize business interests, making the programs deeply unfair. But even within the statutory limitations of the flawed H-2 programs, DHS can begin to correct this unfairness by improving H-2 workers’ access to mobility in H-2A and H-2B rulemaking.
OUR PROPOSED STEPS TO ENSURE H-2 MIGRANT WORKERS’ACCESS TO MOBILITY Migration that Works (MTW) urges DHS to take four steps in rulemaking–and one additional step that does not require rulemaking–to improve H-2 workers’ access to mobility and promote program integrity.
90-day employment authorization and visa grace period. Leaving an H-2 employer and finding a new one will require workers to have time to consult H-2 job opportunities, communicate with prospective H-2 employers, and travel to a new job site. DHS should give workers 90 days of non-visa specific employment authorization and a visa grace period to protect them during this transition period between leaving an H-2 employer and finding and then beginning work with a new one. Flexible work authorization will ensure that workers have a temporary income to cover their expenses without being limited to H-2 employment only. A visa grace period will help ensure workers are not vulnerable to immigration enforcement during this transition period.
Real-time, accessible information about available H-2 jobs. To ensure that workers and their advocates know about available H-2 jobs—and who is recruiting for those jobs—DHS must coordinate with DOL and DOS so that all agencies share and publish real-time information about jobs and recruiters. For example, DOL should coordinate with DHS and DOS to improve the SeasonalJobs website, ensuring that workers know in real time when an employer is actively hiring—in addition to the data already available showing which labor certifications are active or inactive. Additionally, the USCIS H-2B data hub should have real-time information about the I-129 petitions USCIS has approved and which employers have filed petitions under the supplemental cap authority. Having real-time information about available H-2 jobs and recruiters—and sharing that information with workers and advocates—will help correct the information asymmetries that harm workers by keeping them in the dark about opportunities available to them. The Migration that Works Data Committee has shared specific, detailed recommendations with DHS, DOL, and DOS about the real-time data workers and advocates need.
Real-time accessible information for workers about their own immigration status. Currently, US Citizenship and Immigration Services (USCIS) practices prevent worker-beneficiaries from accessing information about their immigration status, including I-129 filings. These practices harm workers, forcing them to rely on their recruiters’ and employers’ promises about visa petitions and extensions. In response to workers’ and Migration that Works’ advocacy, the USCIS Ombudsman formally recommended that USCIS notify worker-beneficiaries about I-129 petitions affecting them. We urge that DHS fully implement the Ombudsman’s recommendations.
Improve workers’ access to information about their rights and resources to enforce them. To realize the promise of the TFRs’ portability provisions–and the more robust mobility provision we urge DHS to adopt–workers need to have access to information about their rights and organizations and resources that can support them. DHS should coordinate with unions, civil society organizations, and other government agencies to deliver this critical information about these rights, both before workers come to the United States and once they have arrived.
MTW also urges DHS to identify funding sources to support nonprofit organizations that will need resources to guide H-2 workers in accessing new jobs with law-abiding employers.
About Migration that Works
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, families and communities and reflects their voices and experiences. Founded in 2011 as the International Labor Recruitment Working Group (ILRWG), Migration that Works is the first coordinated effort to strategically address worker rights abuses across industries and visa categories. For more information, contact Mari Perales Sánchez, mariap@cdmigrante.org, or visit migrationthatworks.org.
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