MTW Comment on DOL’s Proposed Rule “Improving Protections for Workers in Temporary Agricultural Employement in the US”

RE:  Doc. No. ETA-2023-0003 Improving Protections for Workers in Temporary Agricultural Employment in the United States

November 14, 2023

Dear Acting Secretary Su:

Migration that Works writes in support of many of the changes in the Department of Labor’s proposed rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The proposed changes would strengthen worker protections in the H-2A temporary agricultural worker visa program, reflecting policy recommendations that workers and advocates have made for decades. Migration that Works joins in the comment submitted by Farmworker Justice and submits this separate comment to highlight several key changes that align with our coalition’s Alternative Model for Labor Migration. We urge the Department to strengthen some of the proposed changes to meet its policy goals and statutory mandate.

1.  Migration that Works and the Alternative Model for Labor Migration

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 aims to strategically address worker rights abuses across industries and visa categories.

Migration that Works joins workers in supporting an ethical labor migration model. Our model 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, while also ensuring that employers who uphold their legal obligations are not undercut by 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. The simple and accessible self-petition process would eliminate the need for recruiters and 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 more easily change employers. Finally, an ethical labor migration model would allow workers to easily petition for their families to join them, and provide a pathway to lawful permanent residency and citizenship. This model should replace the patchwork of inadequate regulations that currently harm workers across visa categories and industries, including workers in the H-2A program. 

Worker rights and labor standards are pillars of Migration that Works’ Alternative Model for Labor Migration. The following chart compares the existing, broken model of labor migration with the proposed, ethical model.

Rights	Existing Model	Proposed Ethical 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, contracts include breach fees, and travel costs result in work-related debt that forces 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-Determinationand SecureEmployment	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 aFamily	Workers generally cannot migrate with their families. When family members can migrate, they do not have work authorization.	Workers migrate with their families. All family members have equal rights, including access to work authorization.
Equal LaborProtections	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 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-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.
WhistleblowerProtections,Personal Security,and Freedomfrom 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. Legal services are only available to some workers.	All persons are equal before the courts, tribunals, and decision-making bodies. Workers access fair and just processes and remedies, as well as legal services.
Access to Benefitsand 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.

1. Comments on the Proposed Rule

Migration that Works co-signs the coalition comment submitted by Farmworker Justice, and we endorse all recommendations made in that comment. The present comment is narrower in scope and provides additional information highlighting the need for key recommendations included in Farmworker Justice’s comment.

1. Protecting and expanding labor organizations’ and key service providers’ access to H-2A worker housing without arbitrary restrictions.

Migration that Works strongly supports improving access to H-2A worker housing “to protect the right of association and access to information for H-2A workers and workers in corresponding employment and address the isolation that contributes to the vulnerability of some H-2A workers.” This commitment aligns with many of the pillars of our Alternative Model, including organizing, access to justice, and access to benefits and services. In response to the Department’s specific requests for comments, we recommend the following changes.

• The Department should expand the proposed right of access to workers’ housing in section 655.135(n)(2) to all key service providers, using the new definition of “key service provider” proposed in section 655.103(b). While we applaud the proposed protections for labor organizations to access workers in employer-furnished housing, the protection should extend to all key service providers to ensure that workers have access to vital services, including medical care and legal, consular, and social services. Migration that Works founding member and chair Centro de los Derechos del Migrante, Inc. (“CDM”) has documented the consequences of failing to ensure that service providers have easy access to workers in employer-provided housing. For example, during the second year of the COVID-19 pandemic, CDM and community partner organizations surveyed 288 protein processing workers. While many of these workers had H-2B visas, their challenges with vaccine access reveal the critical need to protect medical, legal, consular, and social services providers’ access to all workers in employer-provided housing. Forty percent of the surveyed workers “expressed concerns that gaining access to COVID-19 vaccine would be difficult.” Ensuring that all key service providers have access to workers in employer-provided housing would help to improve workers’ access to vaccines and other critical services.
• The Department should eliminate the proposed arbitrary restrictions on access in section 655.135(n)(2). The Department should not impose arbitrary restrictions on housing access—such as restricting labor organizations’ or key service providers’ access to ten hours per month. When legal services providers meet with workers to evaluate potential rights violations, they often require multiple meetings with each worker to build trust and develop the workers’ claims. Likewise, labor organizations, medical providers, and social services providers may need to meet with workers individually, as well as collectively. Limiting access to ten hours per month is arbitrary and would undermine the goals of protecting workers’ rights of association and access to information.
• Labor organizations and key service providers should be able to request a complete list of H-2A workers and workers in corresponding employment. The Department rightly proposes to allow labor organizations to request and obtain within one week “a complete list of H–2A workers and workers in corresponding employment employed at the place(s) of employment included in the Application for Temporary Employment Certification[.]” Key service providers should likewise be allowed to obtain a list of workers, and employers should be required to provide updated lists if additional H-2A workers arrive or any pertinent information changes after the list is originally provided. Ensuring that labor organizations and key service providers have access to worker lists would advance the Department’s goals of protecting the right of association and access to information. Low-road employers often interfere with labor organizations’ and key service providers’ access to workers. For example, Migration that Works chair CDM recently conducted outreach to H-2A workers for a legal clinic. When CDM staff arrived at workers’ housing, they found no workers—even though they were visiting outside of typical work hours. H-2A workers later disclosed that their employer had required them to report to work during the time that CDM visited, even though there was no work to do. Ensuring that labor organizations and key service providers have access to workers’ contact information will help prevent low-road employers’ interference with access.

2. Expanding protections for workers who organize for better working conditions.

Migration that Works applauds the proposed changes to expand and strengthen labor rights protections for agricultural workers. We strongly support the Department’s proposed additions and amendments to 20 C.F.R. § 655.135(h) and (m). These changes align with organizing, a key pillar of Migration that Works’ Alternative Model for Labor Migration. And, as the Department rightly recognizes, these protections will enable workers “to advocate for better working conditions on behalf of themselves and their coworkers and prevent employers from suppressing this activity.” Extending critical protections to workers who advocate for better working conditions and engage in labor organizing activities also supports the Department’s statutory mandate to ensure that employers cannot exploit the H-2A program to adversely affect the working conditions of workers in the United States who are similarly employed.

3. Holding abusive employers accountable by debarring them from the H-2A program.

Migration that Works strongly supports the Department’s proposals to prohibit employers from taking or withholding a worker’s passport, visa, or other immigration or identification documents against the worker’s wishes in section 655.135(o), and its proposal to include failure to comply with this assurance and obligation within the definition of violations subject to debarment under section 655.182(d)(1)(viii) and 29 C.F.R. § 501.20(d)(1)(viii). This proposal aligns with several pillars of Migration that Works’ model, including whistleblower protections, personal security, and freedom from intimidation. Abusive employers often withhold documents from workers to intimidate or retaliate against them. In the words of a former H-2A worker who was recruited to work in sugarcane in Louisiana, “When we arrived, they took away our passports and did not want to give them back. Throughout a month, we demanded them back, saying that if the police stopped us or anything, we would need them.” Despite encountering severely abusive working conditions, the worker was forced to remain working for his employer over that month because he did not have access to his passport. The proposed rule would help to prevent labor trafficking and other abuses that stem from employers withholding passports. And we strongly agree that employers who withhold passports without a worker’s explicit consent should face debarment.

4. Enhancing recruitment transparency in the H-2A temporary work visa program.

Migration that Works supports the Department’s efforts to enhance transparency. To achieve meaningful transparency and prevent abuses in H-2A recruitment, the Department must take the additional steps outlined in Farmworker Justice’s comment. We emphasize one critical measure.

• The Department should enhance SeasonalJobs.gov to make it accessible for internationally recruited workers and help prevent fraud and abuse.

Migration that Works supports the goal behind proposed section 655.137(d), which “provides for the Department’s public disclosure of the names of the agents and foreign labor recruiters used by employers, as well as the identities and locations of all the persons or entities hired by or working for the primary recruiter in the recruitment of prospective H-2A workers, and the agents or employees of these entities.” Recruitment fraud and abuse, such as employer-driven debt, continue to harm H-2A workers. A 2020 survey of H-2A workers revealed that “[m]ost workers started their employment in debt or without sufficient funds to be able to leave abusive working conditions.” Forty-three percent of surveyed workers reported that the salary they received in the United States was less than what their recruiters promised in Mexico. The Department must ensure that workers have meaningful access to as much information regarding employers, the jobs they are offering, and the recruiters that represent them as possible so that workers can make the best decisions for themselves and their families.

To address recruitment fraud and abuse more effectively, H-2A applicants need an accessible way to verify that an individual claiming to be a recruiter represents the employer and the job offer they purport to represent. The proposed H-2A Foreign Labor Recruiter List is a good step towards the transparency needed in the H-2A program, but without additional measures, the list alone is insufficient to vet recruitment opportunities. The current H-2B Foreign Labor Recruiter List this proposal is modeled on is an English-language spreadsheet on an English-language website that lists foreign recruiter names and their companies. It is not integrated at all with Seasonaljobs.dol.gov, which contains information about specific jobs and the employers offering them, including job duties, pay, work location, expected hours, and employer information.

The Department should take the additional step of combining the employment information already available on SeasonalJobs.dol.gov with the recruiter registry, making this information available to all prospective workers at the time of recruitment in Spanish and other languages common to workers regularly recruited for H-2A positions. To ensure that recruiter information is easily searchable, the Department should require employers to disclose recruiters’ names and business names in a standard format. To ensure that recruiter information is accurate, the Department should require H-2A employers to continually update recruiter information throughout recruitment and employment. If an employer stops using a recruiter, for example, that recruiter’s information should no longer appear on SeasonalJobs.gov. This combination of resources would empower workers with the information necessary to avoid abusive recruiters and recruitment scams.

5. Conclusion

Migration that Works applauds the Department for its efforts to strengthen protections for workers in the H-2A temporary visa program. The proposed changes address some of the fundamental flaws in the H-2A program by protecting unions’ and key service providers’ access to workers, extending labor organizing protections to agricultural workers, and enhancing transparency in H-2A recruitment. We urge the Department to adopt the changes we have recommended, which align with its statutory mandate and policy goals.

Sincerely,

Migration that Works

Notes

1. For more information about Migration that Works, visit https://migrationthatworks.org. To view Migration that Works’ reports, visit https://migrationthatworks.org/reports.
2. See Migration that Works, Proposal for an Alternative Model for Labor Migration (2020), available at https://migrationthatworks.org/wp-content/uploads/2020/01/alternative-model-for-labor-migration.pdf.
3.  Improving Protections for Workers in Temporary Agricultural Employment in the United States (“Improving Protections”), 88 Fed. Reg. 63750, 63799 (proposed Sep. 15, 2023).
4.  Health Within Our Reach, Unpacking the Facts: A rapid assessment of protein processing workers’ experiences during the COVID-19 pandemic in Delaware, Maryland, and Virginia (Dec. 2021), available at https://cdmigrante.org/wp-content/uploads/2021/12/Unpacking-the-Facts-Survey-Report-Final.pdf. 
5.  Improving Protections, 88 Fed. Reg. at 63800-63801, 63825. 
6. Id. at 63825.
7.  Id. at 63753.
8.  Centro de los Derechos del Migrante, Ripe for Reform: Abuses of Agricultural Workers in the H–2A Visa Program, at 22 (March 2020), https://cdmigrante.org/wp-content/uploads/2020/04/Ripe-for-Reform.pdf. 
9.  Improving Protections, 88 Fed. Reg. at 63804.
10. Centro de los Derechos del Migrante, Ripe for Reform at 5. See also Polaris Project, Labor Trafficking on Specific Temporary Work Visas: A Data Analysis 2018-2020 (May 2022) at 26, available at https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf (reporting that out of 2,841 H-2A workers who contacted a human trafficking hotline from 2018-2020, nearly a quarter reported that a debt or quota was used against them to force them to work).
11. Ripe for Reform at 5.