MTW comment on DHS and DOJ’s proposed “Circumvention of Legal Pathways” rule

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 MovementWorkers 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 CoercionRecruiters 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 EmploymentWork 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 FamilyWorkers 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  ProtectionsThe 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.


Non DiscriminationEmployers 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 IntimidationEmployers 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 ServicesWorkers 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. 


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),

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