Introduction
The Biden-Harris Administration has a crucial opportunity to marshal the federal government’s resources and deploy its agencies to more effectively combat human trafficking—a devastating problem that the pandemic has exacerbated. As we observe Human Trafficking Prevention Month, the time is now for a robust, worker-centered strategy to end human trafficking, and particularly forced labor and debt bondage. Last month, the Administration published an updated National Action Plan to Combat Human Trafficking (“Plan”). While Migration that Works commends the Administration for using gender and racial equity lenses and addressing migrant workers in its Plan—vital perspectives missing from the last administration’s version of the Plan—its proposed strategies to protect migrant workers fall woefully short.
The Administration’s priority actions for protecting migrant workers from human trafficking focus on expanding the H-2 temporary work visa programs. This approach is as dangerous as it is wrong. For decades, lax federal oversight of the poorly regulated H-2 temporary work visa programs has enabled widespread labor abuses—too often leading to human trafficking. Expanding the H-2 programs without first implementing enforceable reforms to protect workers will enable human trafficking rather than eradicating it. This approach also ignores the reality of asylum seekers from the Northern Triangle and Haiti—places the Administration has recently prioritized for H-2 visas—who seek safety and permanency in the United States, not temporary work visas.
Analysis
The Administration’s updated Plan focuses on four pillars of anti-trafficking efforts—Prevention, Protection, Prosecution, and Crosscutting Approaches and Institutional Effectiveness. Three of these pillars specifically address migrant workers. Including these workers in the Plan is a necessary first step. But the Administration’s push to expand H-2 temporary work visa programs—a strategy the Administration presses in the Plan—is misguided and risks exposing more workers to abuse and human trafficking.
The following sections of the Plan address migrant workers. Migration that Works endorses several of them, but also urges the Administration to revise its Plan with principles and priority actions to meaningfully protect migrant workers from human trafficking while implementing a labor migration model that respects the human rights of workers, families, and communities and reflects their voices and experiences.
Pillar 1: Prevention
Principle 1.5: Address aspects of nonimmigrant visa programs that may facilitate exploitation of visa holders.
Priority Action 1.5.1 Monitor and support implementation of bilateral agreements with key countries concerning United States temporary worker programs and expand to additional countries.
Priority Action 1.5.1 would abdicate the U.S. government’s responsibility to protect migrant workers’ rights in international labor recruitment while expanding deeply flawed temporary work visa programs. In short, the Administration would rely on Central American governments to enforce migrant workers’ rights in recruitment. This strategy is unacceptable. While we applaud the Administration for its commitment to reforming non-immigrant visa programs that facilitate exploitation of visa applicants and holders, the U.S. government must strengthen and enforce U.S. law to protect migrant workers. Additionally, the Administration can take several steps to improve the temporary work visa programs such as establishing a registry for labor contractors and recruiters that would address the lack of accountability that enables predatory recruitment and trafficking.
Migrant workers have also sought visa portability, access to legal resources, and more transparency in recruitment and hiring. Migrant workers and worker advocates fear that the lack of meaningful reform means that expanding temporary visa programs will only expand the existing issues, rather than preventing or addressing fundamental flaws in these programs.
We have and will continue pushing for recruitment protections for internationally recruited workers across industries and visa categories, including the H-2 temporary work visa programs. However, we fear that these efforts will not be enough to combat the pitfalls of expanding structurally flawed labor migration models– especially to communities fleeing violence and abuse.
We are also concerned by the lack of transparency in these bilateral agreements and lack of gender equity lens of this approach. Workers’ rights organizations working in the United States and Central America have yet to see these agreements to ensure the protections described in this Plan are being met or to learn about how they will be implemented. Furthermore, from discussions with government officials and past models, we worry that gender equity will not be prioritized or advanced through these agreements. In both the H-2A temporary agricultural visa program and the H-2B non-agricultural visa program, migrant worker women form less than 10% of the overall visa recipients. Expanding programs rife with systemic gender discrimination is delegitimizing to the Administration’s public comment to advancing gender and racial equity.
Priority Action 1.5.2 Review current protections for workers across employment-based nonimmigrant visa programs to identify gaps and inconsistencies and propose recommendations
We welcome the opportunity outlined in this priority action, in which the Senior Policy Operating Group, PITF-designated representatives (SPOG) is asked to hear from stakeholders about the different flaws across temporary visa categories and necessary protections. We are pleased with the action item. And we reiterate that abuse isn’t limited to a single type of visa. Our coalition has documented widespread abuse across visa categories, enabled by the very structure that ties workers and their employment visas to a single employer with abundant control over workers.
Priority Action 1.5.3: Identify enhancements to existing procedures through which migrant workers may leave potentially exploitative situations to prevent human trafficking
Workers have stressed the importance of ease in transferring one visa from one employer to another. We welcome and encourage this action, which delineates that DHS, DOL, and DOS review existing procedures to identify what improvements can be incorporated, so workers may leave exploitative workplace situations. Our recommendations include stronger pre-departure education for workers about existing portability avenues in the H-2 programs, and simplifying the process, so workers can access the processes themselves.
Priority Action 1.5.4: Increase general awareness of human trafficking among all student and exchange visitor programs stakeholders
This action calls on DOS to expand education efforts to J-1 exchange categories– while it’s a great step, our coalition has concluded that many of the J-1 subcategories are labor programs and should be regulated as much. More recently, we analyzed the J-1 Summer Work Travel program in our report, Shining A Light on Summer Work: A First Look at the Employers Using the J-1 Program, a data informed publication that extensively documents human trafficking for J-1 SWT participants. We insist DOL work with DOS, hold oversight of the program, to correctly address human trafficking in incorrectly classified work visa programs, such as the J-1.
Pillar 2: Protection
Principle 2.3: Improve access to immigration benefits and options programs to efficiently and effectively provide assistance
Migrant workers often lack access to justice because they are unable to remain in the U.S. while their cases are being adjudicated. We support actions to expand immigration relief to victims of human trafficking in temporary work visa programs, including temporary relief for workers to participate in legal proceedings against employers or recruiters. We also continue to emphasize the importance of processing T and U Visas in a timely manner as well as accompanying work authorization.
Pillar 4: Crosscutting Approaches and Institutional Effectiveness
Principle 4.1: Strengthen understanding of human trafficking affecting the United States
Overall, we support coordinated efforts between agencies and information sharing to prevent human trafficking. However, to make these efforts meaningful, civil society stakeholders must be engaged and relevant data should be utilized. In temporary work visa programs, we have specifically urged agencies such as DOL, DOS, and DHS to publicize data by gender, nationality, and community of origin, which can help member organizations inform workers about their rights before they arrive to exploitative workplace conditions.
Conclusion
As a coalition of labor, migration, civil rights, and anti-trafficking organizations and academics, Migration that Works urges the Administration to move away from strategies prioritizing business interests and harming workers and embrace an alternative model for labor migration — a value-based model that prioritizes the human rights of workers and their families and elevates labor standards for all workers. To put this model into action, it is imperative that workers have transparency and control over the labor migration process, access to justice and a pathway to citizenship. This approach would improve current power imbalances between migrant workers and their employers, ensuring dignity, safety and justice for all internationally recruited workers.
This action plan is a recognition that temporary migrant worker programs can often lead to human trafficking. Therefore, we urge the Biden-Harris administration to promptly stop promoting the expansion of these abusive programs that leave workers vulnerable to a multitude of forms of abuse. We encourage the Biden-Harris administration to focus on meaningful reform of temporary visa programs in collaboration with civil society groups and migrant worker advocates. We believe that by envisioning value-driven alternatives and by working together we can build new and better labor migration models that address workers’ vulnerabilities.
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