RE: Proposed Rule on Circumvention of Lawful Pathways, USCIS-2022-0016-00011
Dear Director Jaddou and Director Neal:
Migration that Works submits the following comment to oppose the Department of Homeland Security’s and the Department of Justice’s proposed “Circumvention of Lawful Pathways” rule. Migration that Works is a coalition of labor, migration, civil rights, and 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.
The proposed rule would erode protections for people seeking safety and permanency in the United States by imposing a “rebuttable presumption of ineligibility for asylum” unless a person meets one of a few narrow exceptions.2In effect, this rebuttable presumption would operate as an asylum “transit ban”—endangering people fleeing violence and persecution. This ban would also violate the U.S. government’s obligations under international human rights law—including Article 14 of the Universal Declaration of Human Rights, which guarantees that “everyone has the right to seek and to enjoy in other countries asylum from persecution.”3
Migration that Works is particularly troubled that the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) cite to the government’s expansion of the flawed H-2 visa programs as an apparent justification for the transit ban. But this policy is deeply misguided: the H-2 programs do not provide or guarantee safety, and by their nature, are not permanent, durable solutions, nor do they allow family unity in the United States.
Migration that Works urges the Administration to withdraw its proposed transit ban and adopt an alternative model for labor migration to end recruitment abuses in the H-2 visa programs—and all work visa programs—by giving workers control over their visas and facilitating direct hiring.4 Our framework for labor migration shifts control over the labor migration process from employers to workers, elevates labor standards for all workers, responds to established labor market needs, respects family unity, ensures equity and access to justice, and affords migrant workers an accessible pathway to citizenship.
An ethical labor migration model would robustly protect workers—rather than pad the profits of low-road employers. Internationally recruited workers would self-petition for their visas, and all workers would connect directly with certified employers through a multilingual, government-hosted database of available jobs. Workers would be entitled—and easily able—to petition for their families to join them. The simple and accessible self-petition process would eliminate the need for recruiters. And it would root out the abuses recruiters perpetuate—from charging fees and discriminating to retaliating against workers who speak out about abuses. Through the government’s job-matching database, workers could also change employers. And workers would be able to petition for citizenship.
These worker rights and labor standards are pillars of Migration that Works’ Alternative Model for Labor Migration.
Comparison of Existing and Proposed Model of Labor Migration
| Rights | Existing Model | Proposed Model |
| Freedom of Movement | Workers are generally tied to one employer, cannot control where they live, and often have their passports and documents confiscated. | Workers petition for and control their work visas, choose a residence, and change jobs or industry sectors. Workers maintain control of their documents at all times. |
| Freedom from Economic Coercion | Recruiters charge workers recruitment fees, employer contracts include breach fees, and travel and subsistence costs result in work related debt that force workers to remain with abusive employers. | Employers pay recruitment fees and costs. Workers arrive at the job site free of recruitment- and work-related debt. |
| Self Determination and Secure Employment | Work visas are time-limited, and workers must return home when their visas expire. Previously full time jobs are made insecure and temporary. Political participation is limited. | Workers have a pathway to citizenship, freely exercise their political views, and freely pursue economic, social, and cultural development. Work visas no longer facilitate precarious work. |
| Migration as a Family | Workers generally cannot migrate with their families. Even when family members can migrate, they are not granted equal rights or work authorization. | Workers migrate with their families. All family members have equal rights, including access to work authorization. |
| Equal Labor Protections | The law limits some workers’ rights and labor protections. Workers are paid less as compared to U.S. workers, which undercuts wages and working conditions for all workers. Employers use work visas to displace existing workers. | Workers are guaranteed high labor standards and just and favorable working conditions, including equal pay for equal work compared to both other migrant and U.S. workers. Genuine need is established before posting job opportunities. |
| Organize | Workers face barriers when they attempt to organize and join unions. Workers who do organize can face retaliation. The prevalence of staffing agencies and other third-party contractors prevents workers at the same job site from having the same employer. | Workers freely join trade unions and other worker-led organizations. Third-party employers are not eligible for certification, clarifying the employment relationship and reducing discrimination. |
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| Non Discrimination | Employers and recruiters hire and assign job duties based on discriminatory bases. | Workers are free from discrimination in hiring, job placement, and re-hiring. |
| Whistleblower Protections, Personal Security, and Freedom from Intimidation | Employers and recruiters retaliate against workers, threaten to blacklist workers who complain, and attack workers. | Workers freely report abuses without retaliation, intimidation, threats, or attacks. |
| Access to Justice | The border acts as a barrier to justice. Complaint mechanisms are not accessible. Some hearings require in-person testimony, and access to visas to pursue claims is restricted. Legal services are only available to some workers. | All persons are equal before the courts, tribunals, and decisionmaking bodies. Workers access fair and just processes and remedies, as well as legal services. |
| Access to Benefits and Services | Workers have difficulty accessing health care and other support services. Government benefits to which workers are entitled are difficult, if not impossible, to access across borders. | Workers have access to health care, mental health care, child care benefits, workers’ compensation, Social Security (including survivors’ benefits), and retirement benefits across borders. |
We urge DHS and DOJ to withdraw their proposed transit ban and implement these changes to end abuses in the H-2 programs, protecting all workers’ wages and working conditions, U.S. and H-2 workers alike.
Sincerely,
Migration that Works
1 Migration that Works thanks Centro de los Derechos del Migrante, Inc. legal intern Eli Longnecker for their support in helping to write this comment.
2 These narrow, difficult-to-meet exceptions include applicants with DHS-authorized travel; people who applied for and were denied asylum in a country through which they traveled on their way to the United States; unaccompanied children; and people who use the CBP One mobile application to make an appointment and successfully present themselves at a port of entry for that appointment.
3 Universal Declaration of Human Rights, Art. 14.
4See Migration that Works, Proposal for an Alternative Model for Labor Migration (2020), https://migrationthatworks.files.wordpress.com/2020/01/alternative-model-for-labor-migration.pdf
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