NWJP and allies win changes for U.S. and temporary foreign workers

by Corinna Spencer-Scheurich, NWJP Deputy Director
Photo by Violeta Rubiani

Since its founding 12 years ago, NWJP has worked extensively with allied legal rights organizations around the country to improve protections for foreign workers who enter the country with temporary visas, and for U.S. workers displaced by the insidious practice of employers using these temporary foreign workers as a cheaper, disposable alternative to U.S. workers.

The H-2 Visa programs were originally instituted to aid companies that were having a difficult time finding workers. It is currently used by companies looking for unskilled laborers to work in forestry, seafood processing, seasonal fairs and carnivals, hotel housekeeping, landscaping, tree nurseries, agriculture, and construction, among other low-wage jobs. When companies can’t find enough workers in the U.S. to fulfill their temporary labor-force needs, they ask the Department of Labor (DOL) to certify their need for workers, and the Bureau of Citizenship and Immigration Services (USCIS) to issue H-2 visas to foreign workers, who are then allowed to enter the country legally to work. Because these visas are temporary and allow the bearer to work only for the employer who applied for the visa, workers find themselves isolated, fearful of losing their jobs, and are often subjected to abuse and exploitation.

The foreign worker programs also allows employers to unlawfully use foreign labor recruitment to avoid hiring U.S. workers, who tend to demand higher wages and are more likely to enforce their workplace rights. In contrast, foreign workers don’t know whether they have rights or where to go for help enforcing them, and often fear deportation, prison, blacklisting, or worse if they speak up.

After seven years of advocacy and legal battles, NWJP and its allies have scored major improvements in the DOL regulations that control the wages that employers must advertise and offer to U.S. workers before they seek foreign workers, who also must be paid the advertised amount.  Under the new regulations, U.S. workers are more likely to know about available work, and the way in which H-2B workers are recruited and hired is less likely to result in their exploitation and isolation.

Prevailing Wage

First, under President Bush, DOL passed regulations that substantially lowered the prevailing wages for H-2B jobs. This led to U.S. workers no longer being offered wages commensurate with average U.S. wages. As a result, U.S. workers either had to accept below-market wages or forgo the job. When U.S. workers passed up low-paying jobs to look for those that paid closer to their market value, the employer then filled the positions that “Americans didn’t want” with foreign workers.

After four lawsuits and a number of well-reasoned and extensive sets of comments to DOL, NWJP and its allies successfully convinced the agency to change the method it used to calculate wages. Now, the prevailing wage employers must offer to U.S. workers before being allowed to use the visa program to hire foreign workers is, on average, $2.12/hr more than the Bush method would allow. And if employers still cannot recruit U.S. workers, H-2B workers hired to do the advertised job also receive the higher prevailing wage.

Recruitment of U.S. Workers

Previously, an employer that didn’t want to hire U.S. workers could pretend to go through the motions of recruiting in the U.S., say he "tried to hire U.S. workers" in order to obtain the OK from DOL, and when U.S. workers didn’t come forth, he could hire H-2B workers.  Under the new regulations, the required recruitment of U.S. workers is much more robust, increasing the chance that U.S. workers will learn about job opportunities they would want to accept.

Worker Dependency

The new DOL regulations will help H-2B visa workers avoid some of the exploitation that occurs due to the fact that H-2B workers’ livelihood and presence in the country is completely dependent on one employer.

Specifically, the new regulations will address the following issues:

  • Job Contracts. Employers must provide a copy of the DOL-approved job order (which has the wage rate and other important employment terms) to each H–2B worker in a language the worker understands. Workers often rely on oral promises about the pay and work conditions in deciding to accept jobs in the U.S. or do not end up getting what the employers promised to DOL.
  • Prohibition on Recruitment Fees. In their contracts with international labor recruiters, employers must specifically prohibit recruiters from charging fees to employees. This will help prevent workers from going into debt just to get a job.
  • Three-Fourths Guarantee. To prevent over-recruitment of workers, employers will be required to pay them at least three-quarters of the hours promised in the work contracts. In the past, workers have been brought to the U.S. and then given little or no work, while paying high costs for housing and food.
  • Prohibition on Retaliation. H–2B employers are prohibited from retaliating against workers for filing complaints, consulting with workers’ centers or lawyers, and exercising any rights or protection to which they are entitled.
  • Reimbursements for Visa and Transportation Fees. Employers must pay or reimburse workers for inbound travel expenses after a worker completes 50 percent of the employment contract. Employers must also cover outbound travel expenses for migrants who work until the end of the job order or who are dismissed before the end of the job order.

These are hard-fought and hard-earned improvements, and NWJP is still engaged in litigation to try to close loopholes that still exist in the regulations. Overall, however, the new regulations are a major improvement in a visa program that has historically been abused by many employers.

In addition, we are pleased to have achieved these results through a successful and sustained national collaboration with other small organizations that work to achieve justice in the workplace.