A ruling from a federal district court in Florida this month threw into doubt the future of the "H-2B" visa program — a temporary foreign labor program under which as many as 66,000 low-wage workers, mostly from Mexico, enter this country each year to perform mostly seasonal, non-agricultural jobs. Workers on H-2B visas, who are sometimes known as "guestworkers," remove snow from our streets, harvest crab meat along the Eastern Shore, operate our fair and carnival rides, and mow our lawns.
The federal court ruling initially suspended the program, but a temporary stay granted Wednesday will allow application processing to continue only through April 15. The administration has indicated it will issue new rules by April 30, leaving the program in jeopardy of again shutting down. To prevent serious disruption to H-2B workers and several Maryland business sectors, the Department of Labor (DOL) and the Department of Homeland Security (DHS) should immediately reissue the substance of the last regulations the Department of Labor issued in 2012.
For years, my organization has documented grave abuses in the H-2B visa program. In surveys of H-2B workers, we found that one in 10 of them pays labor recruiters for jobs that don't exist, more than half of them are charged illegal recruitment fees, and 47 percent incur debt to pay those fees. Together with American University, we highlighted abuses in our state in a report titled Picket Apart: The Hidden Struggles of Migrant Worker Women in the Maryland Crab Industry.
These abuses are often the product of regulatory and enforcement loopholes, which do not hold employers sufficiently accountable for fraud and retaliation perpetrated in Mexico by employers and labor recruiters they engage. The human rights violations to which guestworkers are often subjected was recently highlighted in the well-publicized civil case against Signal International, in which a Louisiana jury awarded $14 million to H-2B oil rig workers who were trafficked from India, grossly underpaid and made to live in guarded, over-crowded labor camps. Earlier this month, the Government Accountability Office highlighted the need for increased protections for such workers in a new congressionally-mandated report.
In 2012, the Department of Labor issued new H-2B regulations that went a long way toward strengthening the protections afforded to guestworkers — in part by adding important transparency, recruitment and retaliation provisions. The 2012 regulations were adopted to remedy fundamental deficiencies in 2009 regulations, several provisions of which were invalidated by a different federal court, which found them to be substantively "arbitrary and capricious."
The rules surrounding the program have faced multiple legal challenges. A ruling from the Florida federal court late last year also invalidated the 2012 regulations over concerns that the Department of Labor doesn't have the authority to run the program, and that court's ruling this month invalidated the remaining 2009 regulations for the same reason.
This most recent Florida ruling effectively nullifies the entire H-2B program and jeopardizes the livelihood of thousands of migrant workers. This latest development raises questions about how the H-2B program will operate in a year that has seen an unprecedented spike in the number of H-2B visa applications (the H-2B visa cap was recently reached for the first time in years), and in which employers have been aggressively recruiting foreign workers.
To keep the H-2B program running with these important worker protections in place, the departments of labor and homeland security should immediately jointly reissue the substance of the 2012 regulations. Joint reissuance by these departments will address the Florida court's concerns about the labor department's inherent authority to regulate the program, as DHS has clearly been given authority by Congress to do so. (A separate set of H-2B rules, which were jointly issued by both agencies, but are not themselves sufficient to give effect to the H-2B program remains effective and has not been subject to challenge.) Our representatives should join the chorus of organizations calling on the administration to jointly reissue the 2012 rule.
The 2012 regulations were adopted after an extensive notice period in which 896 comments were submitted by public interest groups, advocacy groups and businesses. They are the product of lively debate and thoughtful consideration of the implications of the program on both employers and workers. These regulations can be re-adopted and their crucial protections re-affirmed, but — as history teaches — the administration must act quickly.
Rachel Micah-Jones is the founder and executive director of Centro de los Derechos del Migrante Inc. and the convener and chair of the International Labor Recruitment Working Group. Her email is email@example.com.