H-2B Visa

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The H-2B nonimmigrant visa program allows employers to hire foreign workers for temporary or seasonal non-agricultural jobs when they cannot find enough U.S. workers. 

I. H-2B VISA

The H-2B nonimmigrant visa program allows work in the U.S. at temporary or seasonal non-agricultural jobs as long as the wages and working conditions of U.S. workers are not adversely affected.1  Employers must first apply to the U.S. Department of Labor for temporary labor certification affirming that U.S. workers are not available for the job. 2 Employers then petition the U.S. Department of Homeland Security for permission to hire foreign individuals as H-2B nonimmigrants. The H-2B visa does not offer the workers a path to lawful permanent residence or citizenship. 3  H-2B jobs are most commonly in landscaping, amusement parks, housekeeping, forestry, construction and restaurants.  There is an annual limit of 66,000 new H-2B visas available each fiscal year.  In 2012, the U.S. State Department reports that just over 50,000 new H-2B visas were issued.

 
A. History
Early twentieth century agricultural labor importation schemes were precursors to the current temporary foreign worker program, enacted by the Immigration and Nationality Act (INA) of 1952.4   Initially, foreign workers coming to the United States for both agricultural and non-agricultural temporary jobs were included in the same nonimmigrant visa category.5   However, in 1986, the Immigration Reform and Control Act (IRCA) separated agricultural and non-agricultural temporary workers into the current H-2A and H-2B sub-categories. 6  The reason for this owed to “considerable advocacy to protect rights of temporary agricultural workers” whereas “the existing H-2B non- agricultural temporary worker program was virtually ignored in the legislative debate.” 7  As one scholar has put it:
 
Congress had determined that the regulations governing agricultural workers “[did] not fully meet the need for an efficient, workable and coherent program that protects the interests of agricultural employers and workers alike.” Regarding non-agricultural workers, however, a House Report accompanying the bill specifically noted that no changes were being made to the statutory language governing non- agricultural H-2s since the program had worked “reasonably well” with respect to non-agricultural occupations.8
 
Indeed, the legislative history specifies that “[t]he bill makes no changes to the statutory language concerning non-agricultural H-2’s; instead it divides the program into two parts and sets forth a number of specific requirements regarding the operation of the H-2A program.”9   Following IRCA, the U.S. Department of Labor issued H-2A regulations with an extensive scheme of worker protections.10  No similar protections for H-2B workers were ever made.  Several regulations regarding H-2B workers were promulgated in 2008 and took effect in 2009.11  Thereafter, Secretary of Labor Solis endeavored to develop more comprehensive H-2B worker protections in line with H-2A.  Those regulations were supposed to take effect in 2012, but their implementation has been blocked in federal litigation.
 
B. Duration
H-2B visas authorize work for the length of time listed on the temporary labor certification, up to ten months.12  Workers are allowed to be in the U.S. ten days before and ten days after the authorized period.13  An H-2B visa may be extended for up to one year, as long as the current or new employer applies for an extension and it is approved prior to the expiration of the current visa.14  The total amount of time an H-2B worker may be continuously present in the U.S. is three years -- at the end of that three-year period, the worker must depart the United States.15 Certain time spent outside of the U.S. may not count toward the 3-year limit.  The U.S. Department of Homeland Security’s subagency, the U.S. Citizenship and Immigration Services (USCIS) has published guidance on how to calculate the amount of time of an H-2B worker’s authorized stay on a visa when there are interruptions.16 There is no limitation on a former H-2B workers’ eligibility for a new H-2B visa as long as he or she has resided and been physically present outside of the U.S. for 3 months immediately preceding the new visa.17 In other words, after three years, as long as the worker returns to their home country for three months, the worker may return on another H-2B visa.
 
C. Annual Cap on H-2B Visas
In 1990, the INA was amended setting an annual cap of 66,000 for H-2B visas for each fiscal year, which runs from October through September.18  Since that time, the amount of H-2B visas requested each year has fluctuated, but in general, demand has exceeded supply.  Some groups of workers are exempt from the cap such as fish roe processors and certain workers in the Commonwealth of Northern Mariana Islands and/or Guam.19   
 
1. The peak years 2005-2007: H-2R workers 
As certain industries have become dependent on temporary foreign labor, some have petitioned Congress for relief from the cap.20  In 2005, the Save Our Small and Seasonal Businesses Act created a temporary exemption from the annual H-2B cap for nonimmigrants who were returning to work with the same employer.21   These workers were issued H-2R visas, a practice that ultimately lasted for three years.22  At its peak in 2007, 129,547 workers were admitted with both H-2B and H-2R visas.23  The same rules and regulations applied to H-2R workers.  The H-2R program ended in 2007.
 
D. H-4 Visa for Dependents
The H-4 visa category is available for spouses and minor children of any nonimmigrant worker with an H visa to stay in the U.S. as long as the principal’s H visa is valid.24  The U.S. State Department consular official may take steps to verify that the principal H worker is in fact maintaining his or her status in the United States before granting the family member’s H-4 visa.25  The family members are not eligible to work but they may study. 26
 
 
 
  • 1. 8 U.S.C. § 1101(a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h)(1)(ii)(D), (6)(i)(A).
  • 2. Id.; 8 C.F.R. § 214.2(h)(iv)(A) (employer must certify “qualified workers in the United States are not available and that the [terms] of employment will not adversely affect the wages and working conditions of similarly employed U.S. workers”).
  • 3. 8 C.F.R. § 214.2(h)(16)(ii). In fact, if a H-2B worker finds an employer willing to sponsor them for LPR employment-based status while they are in the U.S., they may not extend their H-2B status while their permanent immigration application is pending.
  • 4. Act of June 27, 1952, ch. 477, codified at 8 U.S.C. § 1101 et seq.; Alice J. Baker, Agricultural Guestworker Programs in the United States, 10 TEX. HISP. J.L. & POL’Y 79, 82–88 (2004).
  • 5. Andorra Bruno, Immigration: Policy Considerations Related to Guest Worker Programs, Congressional Research Service Report for Congress, 1 (2006), http://fpc.state.gov/documents/organization/62664.pdf.
  • 6. Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, § 301(a), 100 Stat. 3359, 3411, 8 U.S.C. § 1101(a)(15)(H); Mike Holley, Disadvantaged by Design: How the Law Inhibits Agricultural Guestworkers From Enforcing Their Rights, 18 Hofstra Labor & Employment Law Journal 2001, 581-583 (detailing history of guestworkers leading up to the modern H-2 programs); see also Martinez v. Reich, 934 F. Supp. 232, 237 (S.D. Tex. 1996) (discussing how Congress made changes to H-2A programs, but not H-2B programs).
  • 7. Arthur N. Read, Learning from the Past: Designing Effective Worker Protections for Comprehensive Immigration Reform, 16 Temp. Pol. & Civ. Rts. L. Rev. 423, 430, 432. (2007); Charles C. Mathes, The Department of Labor’s Changing Policies Toward the H-2B Temporary Worker Program: Primarily for the Benefit of Nobody, 80 Fordham L. Rev. 1801, 1807-08 (2012).
  • 8. Mathes, 80 Fordham L. Rev. at 1807-08, citing to H.R. REP. NO. 99-682, pt. 1, at 50–51, 80 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5654–55, 5684.
  • 9. Id. at 1807, FN 38, citing to H.R. REP. NO. 99-682, pt. 1, at 80 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, at 5684.
  • 10. 20 C.F.R § 655 Subpart B.
  • 11. 73 Fed. Reg. 78020 (December 19, 2008), 20 C.F.R. § 655 Subpart A.
  • 12. 8 C.F.R. § 214.2(h)(9)(iii)(B)(1) (A beneficiary shall be admitted to the United States for the validity period of the petition.).
  • 13. 8 C.F.R. § 214.2(h)(13)(i)(A) (However, “the beneficiary may not work except during the validity period.”).
  • 14. 8 C.F.R. § 214.2(h)(14), (15).
  • 15. Id.
  • 16. 8 C.F.R. § 214.2(h)(13(iv)-(v).
  • 17. 8 C.F.R. § 214.2(h)(13)(iv).
  • 18. Immigration Act of 1990, Pub. L. 101-649, § 205(a), 104 Stat. 4978, 5019, 8 U.S.C. § 1184(g)(1)(B).
  • 19. Department of Defense Appropriations Act of 2005, Pub. L. 108-287, §14006.
  • 20. Lindsay N. Pickral, Close to Crucial: The H-2B Visa Program Must Evolve, But Must Endure, 42 Univ. of Richmond Law Rev. 1011 (2008) (Noting that the crab processing industry in Maryland was behind the push for annual cap exemptions).
  • 21. See Pub. L. 109-13, § 402, 119 Stat. 231, 318 (2005).
  • 22. Id. The initial legislation provided for a sunset after two years and Congress renewed it by incorporation into an unrelated bill for an additional year. Pub. L. 109-364, § 1074, 120 Stat. 2083, 2403 (2006). Therefore the H-2R visas were in effect for three years, 2005 through 2007.
  • 23. U.S. State Department, Nonimmigrant Visa Spreadsheet FY 97-12, available at http://www.travel.state.gov/visa/statistics/nivstats/nivstats_4582.html.
  • 24. 8 C.F.R. § 214.2(h)(9)(iv).
  • 25. 9 FAM 41.53 N17.2.
  • 26. 9 FAM 41.53 N17.3; 8 C.F.R. § 214.2(h)(9)(iv).
II. H-2B HIRING PROCESS

As is the case with many other nonimmigrant visa programs, employers – either directly or through a hiring agent - apply for permission to import H-2B workers.  Three government agencies are involved: the U.S. Department of Labor (USDOL), U.S. Department of Homeland Security (DHS), and the U.S. Department of State. First, USDOL reviews applications for temporary labor certification.  Second, the DHS’s U.S. Citizenship and Immigration Services reviews petitions for nonimmigrant workers.  While the H-2B request is pending with the various federal agencies, employers must locate and hire the foreign workers to fill the positions.  Workers are usually recruited in their home countries.  To assist with the process, employers may hire a labor contractor, who may also be in the business of foreign recruitment. Or, the employer may hire a foreign recruiter directly.  Less commonly, employers travel abroad to find their own workers or recruit them through other known migrant workers in the U.S. Once the USDOL and DHS approve the H-2B positions, the prospective H-2B workers apply for the H-2B visa from the Department of State at the designated U.S. consular post in their home country. 27  After a worker receives his H-2B visa, he must present for admission at the U.S. border or port of entry.  If DHS’s Customs and Border Patrol, is satisfied that the worker is admissible, he will then be allowed entry into the United States in order to work for the employer designated on the visa.

 
 
 
 
A. Steps For Employers 
Employers who want to hire H-2B workers may either navigate the steps themselves or hire an agent (often referred to as a labor contractor or staffing company) to handle the process for them.  Either the employer or its agent may petition the government for H-2B workers. 33  Labor contractors must list the name and location of each employer where the nonimmigrants will work.34  The location of each actual worksite must be listed with as much geographic specificity as possible.  
 
 
1. U.S. Department of Labor
Employers apply for H-2B temporary nonagricultural job positions from USDOL’s Employment and Training Administration, Office of Foreign Labor Certification by submitting an application for temporary labor certification.35 The job opportunity listed on the application must be for a bona fide, full-time temporary position.  Temporary means less than 10 months and either for a one time-need or for seasonal, peak load or intermittent work.36  Full time is defined as 30 or more hours per week.37  The employer must pay the prevailing wage or for the position.38  USDOL approves a high proportion of temporary labor certification applications.
 
 
a) Prevailing Wage Determination
The very first step in the H-2B hiring process is to obtain a Prevailing Wage Determination (PWD).39  Obtaining the PWD is a prerequisite to filing an application for temporary labor certification.  Employers submit the Application for Prevailing Wage Determination, ETA Form 9141 to USDOL’s National Prevailing Wage Center via the iCERT System. The PWD must be valid either on the date recruitment begins or the date of filing a complete application.  USDOL determines the prevailing wage based on one of several methods.  The prevailing wage is either what is spelled out in the collective bargaining agreement in place at the worksite, if any, or it is the arithmetic mean of wages of workers similarly employed in the area of intended employment.40  The wage numbers from which the mean is derived come from either the Occupational Employment Statistics (OES) Survey or one provided by the employer, if it’s found acceptable by USDOL.41
 
 
 
b) Pre-filing recruitment
Employers are required to try to recruit U.S. workers prior to filing for temporary labor certification from USDOL.51  This “pre-filing recruitment” includes submitting a job order to the State Workforce Agency (SWA) (usually the state department of labor or employment service) that covers the geographic area of employment, publishing at least two print advertisements (one of which must be on a Sunday), and contacting the applicable union, if there is a collective bargaining agreement in effect at the worksite.52 Pre-filing recruitment must occur within 120 days of the job’s start date.  The employer must prepare and sign a report summarizing its recruitment efforts and their effect.53  The report must identify each U.S. worker who applied for the job, if any, and explain the lawful job-related reason for not hiring the U.S. worker.  The report is included with the application for temporary labor certification.
 
 
 
c) Application for temporary labor certification 
After obtaining a prevailing wage determination and engaging in pre-filing recruitment efforts, the employer files the temporary labor certification application with the National Processing Center in Chicago.58   The application includes the ETA Form 9142, and Appendix B-1, the pre-filing recruitment report59  and any supporting documentation, which shows the employer’s temporary need for workers.60  Employers may submit the application either electronically or via U.S. mail to the Chicago National Processing Center.  The USDOL will review the application for errors and compliance with H-2B program criteria, and will either issue a final decision about the application or send the employer a request for further information (RFI).  In any case, the USDOL will make a decision within 60 days of the date of need for the workers or within 7 days of an employer’s response to an RFI, whichever is sooner.
 
2. U.S. Department of Homeland Security
Once the USDOL’s final decision approving the temporary labor certification comes through, the next step is petitioning DHS’s U.S. Citizenship and Immigration Services (USCIS) for permission to import foreign workers with H-2B nonimmigrant visas.61 Along with the Petition for Nonimmigrant Worker, Form I-129, petitioners must submit evidence including the USDOL-approved temporary labor certification, a statement of need, and if required, the workers’ qualifications.62  The documentation must include details about the temporary situation or conditions requiring the importation of foreign workers, whether the need is “a one time occurrence, seasonal, peak-load or intermittent,” and whether the petitioner expects the situation to recur.63  If the petitioner is a labor contractor, the employer’s name is not required on Form I-129: only the place of employment.  In these cases, USCIS will have the address of the worksites, but not necessarily the names of individual employers.  
 
Petitioners may file for more than one worker on a single Form I-129 if all workers will perform the same services for the same period of time and in the same location.64  If the employer is requesting nonimmigrant status for multiple workers who are not currently in the United States, they do not need to be named individually on the Form I-129.65  The total number of unnamed worker beneficiaries sought must be revealed on the petition, and their nationality must also be specified, even if they are from more than one country.66  Fees for each application (not per worker beneficiary) include a $325 basic filing fee and a $150 fraud detection and prevention fee.67 Premium processing (to speed up the review time) is available for $1,225.68 The Form I-129 may not be filed or approved more than 120 days before the date of need.69  After petitions are adjudicated, the decision is entered into the computer tracking system and if approved, the H-2B visa is ready for consular processing.
 
 
a) Two application periods
For purposes of the annual 66,000 cap, the USCIS processes H-2B visas in two equal application periods each fiscal year.  The annual H-2B visa allotment is divided into two application periods: 33,000 for the first half of the fiscal year and 33,000 for the second half.70  USCIS accepts applications from October 1 to March 31, until the 33,000-cap ceiling is reached.  Any unallocated visa slots are rolled over into the second half of the fiscal year (April 1 through September 30) for a new count of 33,000 plus unallocated visas from the first have of the year.  Unused visa slots cannot be carried over from one fiscal year to the next.  USCIS maintains an updated cap count on their website.  As of April 23, 2013, USCIS approved nonimmigrant status for 43,263 H-2B workers during the first have of the fiscal year, and 21,580 in the second.71
 
3. U.S. Department of State
Once the Form I-129 is approved by USCIS, the employer will then communicate with the workers, either directly or through its labor contractor or recruiter, that they should apply for the visas at the U.S. consulate or visa processing location abroad.72 Usually an agent of the employer or recruiter will assist the workers with this process. The Department of State requires a $190 basic filing fee, $85 fingerprinting, and $26 consulate interview fees.73
 
 
 
B. Steps For Workers 
An H-2B visa is only available for an individual worker once an employer has authorization from USDOL and USCIS to hire a certain number of H-2B workers.  Workers usually connect with the employer through a foreign recruiter. Once a worker is offered and accepts an H-2B job, he must apply for the visa from the Department of State at a U.S. embassy or consulate in their home country. The prospective H-2B worker must demonstrate that he has nonimmigrant intent and will return home when the job period ends.77  The Department of State reviews the application and has the final say about whether to issue visa.  Refusal rates have increased, especially in specific consulates with heightened concerns about fraud. Still, in 2012 the adjusted refusal rate for H-2B visas was only 11%.78  With the H-2B visa in-hand, the worker must pass immigration inspection at the border or port of entry.  The visa itself does not guarantee entry to the United States.  DHS’s Customs and Border Protection will either permit or deny entry after their own inspection and will determine the permitted time allowed in the U.S., which may be less time than what is listed on the visa itself.79
 
 
1. Recruitment Fees Are Illegal
Prospective workers should not have to pay fees to a recruiter.80  Regulatory changes in 2008 explicitly state that recruitment fees are banned.81 Indeed, 
 
as a condition of approval of an H-2B petition, no job placement fee or other compensation (either direct or indirect) may be collected at any time, including before or after the filing or approval of the petition, from a beneficiary of an H-2B petition by a petitioner, agent, facilitator, recruiter, or similar employment service as a condition of an offer or condition of H-2B employment (other than the lower of the actual cost or fair market value of transportation to such employment and any government-mandated passport, visa, or inspection fees, to the extent that the passing of such costs to the beneficiary is not prohibited by statute, unless the employer, agent, facilitator, recruiter, or similar employment service has agreed with the beneficiary that it will pay such costs and fees).82
 
USDOL’s H-2B program regulations require that employers contractually forbid an recruiters from charging fees.83  On the Form I-129 petition filed with DHS, employers attest that fees will not be charged. If USCIS finds out that the worker has paid a recruitment fee and that the employer either collected the fee or knew or should have known that an “agent, facilitator, recruiter or similar employment service” has collected a fee, the H-2B petition will be denied unless the petitioner shows that the beneficiary was reimbursed.84  Even though recruitment fees are banned, prospective H-2B workers oftentimes still pay them, with or without the employer’s knowledge.  The recruiter may simply call the fee that is paid a “service fee” or tell the worker to keep it secret.85
 
 
 
 
 
2. Job Changes Only Allowed With Government Approval 
An H-2B worker is authorized to work for a single employer for a specific period. If he or she quits his or her job or is fired, the visa is no longer valid.   If a worker seeks to change employers prior to the completion of the original work period, the prospective new employer must go through all the regular hiring steps, first filing a temporary labor certification with USDOL and then filing a Form I-129 petition for H-2B approval and an extension of the worker's stay in the United States.91 The worker may not begin the new job until the certification and petition for H-2B status and extension are approved.92 Neither USDOL nor DHS publish information on how often this happens.  
 
 
  • 27. U.S. consulates, embassies and visa processing locations abroad are all part of the Department of State consular affairs. See the organizational chart available at http://www.state.gov/documents/organization/187423.pdf.
  • 33. 8 C.F.R. § 214.2(h)(2)(i)(F) and (6)(iii)(B).
  • 34. 8 C.F.R. § 214.2(h)(2)(i)(F)(2). The supporting documentation should include a complete itinerary of services or engagements. “The itinerary shall specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed.” Id.
  • 35. 20 C.F.R. § 655.1; 8 C.F.R. § 214.2(h)(6)(iii)(A). Employers in Guam seek temporary labor certification for H-2B workers from the Governor of Guam. 20 C.F.R. § 655.2.
  • 36. 20 C.F.R. § 655.6(c).
  • 37. 20 C.F.R. §§ 655.4 and 655.22(h).
  • 38. 20 C.F.R. § 655.10(a) (“The employer must advertise the position to all potential workers at a wage at least equal to the prevailing wage obtained from the NPWC, or the Federal, State or local minimum wage, whichever is highest. The employer must offer and pay this wage (or higher) to both its H-2B workers and its workers in corresponding employment. The issuance of a PWD under this section does not permit an employer to pay a wage lower than the highest wage required by any applicable Federal, State or local law.”)
  • 39. 20 C.F.R. § 655.10.
  • 40. 20 C.F.R. § 655.10(b); 78 Fed. Reg. 24047, 24055 (April 24, 2013). This rule took effect immediately but is actually just an interim rule. USDOL and DHS will promulgate a final rule following their review of public comments that as of June 2013 are pending.
  • 41. Id.
  • 51. 20 C.F.R. § 655.15.
  • 52. 20 C.F.R. § 655.15(d), (e).
  • 53. 20 C.F.R. § 655.15(j).
  • 58. 20 C.F.R. § 655.20.
  • 59. 20 C.F.R. § 655.20.
  • 60. 20 C.F.R. § 655.21.
  • 61. 8 C.F.R. § 214.2(h)(6)(iii)(E).
  • 62. 8 C.F.R. § 214.2(h)(6)(vi).
  • 63. 8 C.F.R. § 214.2(h)(6)(vi)(D).
  • 64. 8 C.F.R. § 214.2(h)(2)(ii).
  • 65. 8 C.F.R. § 214.2(h)(2)(iii). However, there are exceptions. H-2B petitions must include the name of each beneficiary who is currently in the United States and USCIS may still require the worker’s name if it is needed to establish eligibility.
  • 66. Id.
  • 67. The fraud fee is mandated by 8 U.S.C. 1184(c)(13)(A).
  • 68. Form I-907, Request for Premium Processing Service must be completed and submitted as well if the petitioner needs a quicker review process. See Form I-907.
  • 69. 8 C.F.R. § 214.2(h)(9)(i)(B).
  • 70. See Pub. L. 109-13, § 402, 119 Stat. 231, 318 (2005).
  • 71. U.S. Department of Homeland Security, USCIS, Cap Count for H-2B Nonimmigrants, available at: http://www.uscis.gov/portal/site/uscis/template.PRINT/menuitem.5af9bb959... (April 2013).
  • 72. See generally 9 FAM 41.53; Bureau of Consular Affairs, Temporary Worker Visas, U.S. State Department, available at http://travel.state.gov/visa/temp/types/types_1271.html#5.
  • 73. U.S. State Department, Fees for Visa Services, available at http://travel.state.gov/visa/temp/types/types_1263.html, and Temporary Worker Visas, available at http://travel.state.gov/visa/temp/types/types_1271.html; U.S. Department of Homeland Security, USCIS, H-2B Temporary Non-Agricultural Workers, Jan. 23, 2012, available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7....
  • 77. Non-immigrant intent is required for individuals applying for H-2B visas. See 8 U.S.C. § 1101(a)(15)(H) (H-2A and H-2B workers are defined as “having a residence in a foreign country which [s/]he has no intention of abandoning who is coming temporarily to the United States to perform” agriculture or other temporary services for which there are no available U.S. workers); and 9 FAM 41.53 N3.2.
  • 78. U.S. Department of State, NIV Workload by Category 2012 (April 2013).
  • 79. 8 U.S.C. §1225; 8 C.F.R. Part 235, Inspection of Persons Applying for Admission; see also Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., and Sam Bernsen, Immigration Law and Business § 2:11 (2010) (“The issuance of a nonimmigrant visa gives the alien permission to apply for admission to the United States at a port of entry…The visa does not assure an alien that he or she will be admitted to the United States, however; it merely indicates that a consular officer has found the alien eligible for temporary admission to the United States and not inadmissible under § 212(a) of the INA, 8 U.S.C.A. § 1182(a).”).
  • 80. 20 C.F.R. § 655.22(j).
  • 81. 8 C.F.R. § 214.2(h)(6)(i)(B).
  • 82. Id.
  • 83. 20 C.F.R. § 655.22(g)(2).
  • 84. 8 C.F.R. § 214.2(h)(6)(i)(B).
  • 85. U.S. Department of State, Trafficking in Persons Report, June 2011, at 377 (noting that after the ban was put in place, “recruiters adjusted their practices by charging fees after the workers had obtained their visas and levying charges under the guise of ‘service fees.’”), available at http://www.state.gov/documents/organization/164458.pdf.
  • 91. 8 C.F.R. § 214.2(h)(2)(i)(D).
  • 92. Id.
III. H-2B WORKERS IN THE U.S. - DATA

The three federal agencies that share responsibility for the H-2B program each publish a variety of data.  The U.S. Department of Labor (USDOL) publishes the number of applications for certification and the number of H-2B job positions requested and certified.  In addition, USDOL provides information on employers, job type, location, and wages offered.  The U.S. Department of State annually presents data on the number of visas actually issued and the nationality of the workers that receive them.  The U.S. Department of Homeland Security (DHS) publishes the number of workers requested on petitions for H-2B nonimmigrant status as well as admissions for individuals with H-2B visas, and the countries they came from. Because each agency counts something different, none alone offers an accurate number of H-2B workers.  However, read together the agency data does present the scope of the program.  In 2012, the USDOL certified just over 75,000 H-2B jobs, DHS approved petitions on behalf of 65,864 H-2B worker beneficiaries, the Department of State issued just over 50,000 H-2B visas, and 82,906 H-2B admissions were counted.  Several U.S. states in the South have the largest number of H-2B workers, with New York following close behind. Every year, over 70% of H-2B workers are Mexican nationals.  No agency publishes data on the age or gender of H-2B workers, despite the fact that this information is routinely gathered and maintained by the government.

 
A. The Number of H-2B Workers
 
1. U.S. Department of Labor
USDOL certified 75,458 H-2B positions in 2012; 4,211 applications for temporary labor certification (ETA Form 9142) were submitted, and 3,528 were certified.93  On each application, employers request that a certain number of positions be certified as H-2B eligible. If the requirements are met, USDOL will certify the number of positions requested.  The number of H-2B positions certified through the temporary labor certification process is just that, and is not necessarily the same as the actual number of workers who are either granted a visa or come to the United States to work.  USDOL apparently does not distinguish whether temporary labor certifications are filed for workers who are currently abroad or who are present in the U.S. already and who are seeking to change jobs to work with a new employer.
 
2. U.S. Department of State
USDOS tracks the numbers of H-2B visas issued to foreign workers each year.  In 2012, State issued 50,009 new H-2B visas.94  This number has been relatively stable since 2009, after the H-2R program ended.  The number of visas issued does not include the workers who entered with H-2B visas in previous years and extended their stay into the present year.  Furthermore, even if a worker is issued a visa, it does not necessarily mean that he or she actually entered the United States. The Department of State does not publish this data.95
 
3. U.S. Department of Homeland Security 
DHS has two agencies involved in the H-2B program and thus two sets of data pertaining to the number of H-2B workers.  The U.S. Citizenship and Immigration Services (USCIS) receives the petitioner’s Form I-129, which requests that a certain number of nonimmigrant visas be made available for worker beneficiaries.  The Customs and Border Patrol (CBP) interviews at the border or port of entry the workers who have received H-2B visas from their local U.S. Consulates, and decides whether to grant their admission and issues an entry document, or I-94.
 
a) U.S. Citizenship and Immigration Services
USCIS publishes a current-year running H-2B cap count totaling the number of beneficiaries approved and petitions pending. In 2012, USCIS approved petitions on behalf of 65,864 worker beneficiaries.96 This number includes worker beneficiaries who are counted against the annual cap.  Data on petitions to extend the stay of an H-2B worker or become the new employer of an H-2B worker already in the United States are generally not included in the cap count number.97
 
b) Customs and Border Patrol 
CBP counted 82,906 H-2B visa admissions in 2012.100 The Office of Immigration Statistics publishes these I-94 statistics in their annual Yearbook.  The number of nonimmigrant admissions refers to the number of admissions rather than the number of individuals.101 There were 82,906 H-2B admissions to the U.S. in 2012, not necessarily 82,906 different workers.  The way the data is collected does not distinguish between the first and return entries.  But rather they are counted as separate admissions.   In other words, one worker may be counted several times in one single year. 
 
 
 
B. H-2B Worker Demographics 
USCIS may approve petitions for H-2B nonimmigrant status only for individuals from certain countries designated annually by DHS and DOS103.  Individuals from other countries are allowed only if DHS determines that it is in the U.S. interest.104  For the year 2013, DHS has identified 63 countries whose nationals are eligible to participate in the H-2B program.  Even though dozens of potential source countries are on the authorized list, more than 70% of H-2B workers are from Mexico.105  Jamaica, Guatemala, South Africa and Great Britain are the next largest sending countries for H-2B workers.  That proportion of Mexican worker flow has been a constant throughout the H-2B program’s existence.
 
 
1. Age and Gender
The U.S. government does not regularly publish information about the age and gender of H-2B workers. Because an employer does not have to list individual beneficiaries on the Form I-129, this information is not maintained by USCIS in the same manner as with other nonimmigrant visa categories, such as H-1B.  Nevertheless, DHS does possess this information, as Customs and Border Patrol tracks land border admissions with a computer system that “includes arrival and departure dates, port of entry, class of admission, country of citizenship, state of destination, age, and gender.”109   
 
Likewise, when prospective workers apply for their visas at the U.S consulates abroad, personal information for every individual is gathered, including age and gender.  The Department of State maintains this information as well and has released it on request.110  The data shows disparities in the issuance of H-2B visas according to age and gender.  The preference for young, male workers seems clear.  In 2010, most workers were between the ages of 19 and 28, and the age of the average worker was 32.111  Moreover, males accounted for 40,982 of the visas issued compared with 6,536 H-2B visas for females (13.8% of all H-2B visas issued in 2010). 112
 
 
C. H-2B Employer Demographics 
USDOL publishes information on H-2B employers and where jobs are located. The largest H-2B employers are consistently in the amusement park and forestry industries.113  
 
1. Location
In 2012, Texas, Florida, Louisiana, Virginia and New York were the five states with the most H-2B jobs certified by USDOL.114
 
D. H-2B Job Characteristics
The H-2B temporary non-agricultural visa program is geared towards low-skilled  occupations that do not require advanced degrees.  However, H-2B visas run the gamut of low-wage occupations, including landscaping, which was the most common in 2012.115   Since 2008, tens of thousands of H-2B workers in “landscaping services” have been certified even though the unemployment rate in that sector was 20.1% for private sector workers.116   Jobs in forestry, amusement parks, housekeeping, meatpacking, seafood processing, and hotels and restaurants are also widely found, while positions as athletic instructors, electricians, bartenders and truck drivers seem more rare. 117  The top occupations have been consistent over time.
IV. RECRUITMENT OF FOREIGN WORKERS FOR H-2B JOBS

Usually, employers locate H-2B workers through labor contractor or recruiters who are hired by the employer to find suitable workers. Federal agencies in charge of administering the H-2B program either do not maintain information about recruiters or it is not publicly available.  There is no registration system in place for recruiters.  Recruiters may be staffing companies or individual who are either based in both the U.S. and abroad or subcontract with other foreign recruiters.   Customarily, advertising is by word of mouth or through local media outlets. Groups of workers from the same hometown will oftentimes be recruited and travel together to work for the same employer.  Problems arise when recruiters make false promises or charge the workers illegal fees just to be eligible for H-2B jobs.  Even though regulations require employers to prohibit recruiters from charging fees, enforcing this prohibition is difficult.  Whether the employer knows, or should know, about the behavior of recruiters with respect to any H-2B worker is an issue that is often hotly contested when complaints about foreign recruitment come to light. When the government discovers that a worker has paid an unlawful recruitment fee, the H-2B petition will be denied or revoked.

 
A. Recruiter Registration Not Required
H-2B recruiters are not required to register with the U.S. government. While Form I-129 requires employers to identify their recruiters by name, those recruiters are neither registered nor tracked in any manner, and the information is not provided to the workers or to any agency in their home countries.  In any case, information about foreign recruiters is not publicly available. This lack of transparency is problematic. Prospective workers need to know about the recruiter’s connection to U.S. employers so job offers may be verified.  When workers have only informal sources to rely on, the situation is ripe for abuse. 
 
B. Information About Foreign Recruitment Not Maintained
Under the current H-2 regulations, the U.S. Department of Labor (USDOL) does not request any information about foreign recruitment.  While USDOL certifies the number of H-2 jobs available, and, thus, the number of foreign workers the employer may seek to hire abroad, USDOL never asks where the workers will be recruited, or who will recruit them.121  The only USDOL regulation pertaining to recruitment requires employers to contractually forbid their recruiters from charging recruitment-related fees to prospective H-2 workers.122   The U.S. Department of Homeland Security (DHS) on the other hand, does request such information.  On the petition for non-immigrant workers, Form I-129, the employer must specify what country the worker beneficiaries will be from as well as the names of the “staffing, recruiting, or similar placement service or agent” and countries in which they will be recruiting.123  While this is a beneficial anti-fraud and worker protection measure, the information is neither publicly available nor available to the prospective H-2B workers.  Employers do not need to disclose whether their recruiters will use subcontractors to actually recruit the workers, even though the use of subcontractors is common. The U.S. Department of State does not have an official policy or pertinent regulation about collecting information on recruiters.124
 
  • 121. 20 C.F.R. § 655 Subpart A.
  • 122. 20 C.F.R. § 655.22(g)(2) (“The employer has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H–2B workers to seek or receive payments from prospective employees”).
  • 123. 73 Fed. Reg. 78104 (Dec. 19, 2008); Form I-129 was amended as follows: The H-Classification Supplement, Section 3 Question 7. “Did you or do you plan to use a staffing, recruiting, or similar placement service or agent to locate the H-2A/H-2B workers that you intend to hire by filing this petition? If yes, list the name and address of the service used.”
  • 124. See generally, 9 FAM 41.53; interviews with Department of State officials during 2010 and 2011.
V. H-2B WORKER RIGHTS

The H-2B program regulations establish few worker protections.  Indeed, the rights provided pale in comparison with what is provided for H-2A workers in their separate regulations.  While there is a required fixed wage that must be paid to H-2B workers, there are no provisions for housing, meals or transportation.  There is no requirement that employers give H-2B workers a copy of job order, there is no work guarantee, no recordkeeping requirement and no explicit prohibition against retaliation. While there is at least a regulation specifying that employers must comply with all applicable federal and state employment laws,125  there is no such statement that the H-2B job order amounts to an employment contract with terms that would be enforceable in court, although some advocates maintain otherwise. H-2B workers are protected by any number of other federal or state employment statutes or common law rights that apply to them, including but not limited to the Fair Labor Standards Act, the Age Discrimination Employment Act, Title VII of the Civil Rights Act, the Trafficking Victims Protection Act, the Racketeer Influenced Corrupt Organizations Act, and state wage and hour and discrimination laws.  Whether specific statutes or common law rights apply to any given worker will depend on the facts of each particular situation.

 
A. Prevailing Wage Required
H-2B workers must be offered wages that equal or exceed the highest of the prevailing wage or federal, state, or local minimum wage.126  This wage must be paid for the entire time certified in the application.  If wages are based on commissions or other incentives, pay must at least be the offered wage on a weekly, biweekly, or monthly basis.127  The required wage is set for each particular H-2B job when the employer files its temporary labor certification with the U.S. Department of Labor.
 
1. Deductions
Employers (and their agents and attorneys) may not impose on H-2B workers any costs associated with the certification, including attorney/agent fees, application costs, and recruitment fees.128  If the Fair Labor Standards Act (FLSA) applies, any deductions from wages must be disclosed ahead of time, reasonable, and allowable under the FLSA.129
 
 
 
B. Transportation Costs
H-2B program regulations generally do not require employers to pay for a worker’s inbound or outbound travel expenses.  The employer is, however, responsible for paying for outbound travel when a worker is dismissed prior to the end of the certified period of employment.132  If the Fair Labor Standards Act applies, the employer generally must reimburse workers’ inbound travel expenses to the extent that those expenses drive wages below the federal minimum in the first paycheck.133
 
C. No job relocating
Employers may not place H-2B workers outside the area of intended employment and itinerary listed on the H-2B job order.134
 
  • 125. 20 C.F.R. § 655.22(d) (During the period of employment, employers must comply with all other employment-related laws, including employment-related health and safety laws.).
  • 126. 20 C.F.R. § 655.22(e).
  • 127. 20 C.F.R. § 655.22(g)(1).
  • 128. 20 C.F.R. § 655.22(j).
  • 129. See generally 29 C.F.R. Part 531; see also USDOL WHD fact sheet #16, available at http://www.dol.gov/whd/regs/compliance/whdfs16.pdf
  • 132. 8 U.S.C. § 1184(c)(5)(A); 20 C.F.R. § 655.22(m); 8 C.F.R. § 214.2(h)(6)(vi)(E).
  • 133. U.S. Department of Labor, WHD, Field Assistance Bulletin 2009 02, available at http://www.USDOL.gov/whd/FieldBulletins/; see also Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696, 706 (2009) (inbound travel costs incurred by H-2B workers operated as de facto deductions and employer is liable to the extent these deductions drive first week's wages below the minimum).
  • 134. 20 C.F.R. § 655.22(l).
VI. ENFORCEMENT

H-2B program worker protections and the Fair Labor Standards Act are enforced by the U.S. Department of Labor.  If an H-2B worker claims any sort of discrimination, the Equal Employment Opportunity Commission may have the ability to enforce those rights.  State attorneys general and agencies customarily will have the authority to enforce state laws that may apply.  Workers themselves may enforce their own employment and civil rights by filing a lawsuit in federal or state court as long as there is jurisdiction and a private right of action.  However, as is the case with all foreign temporary workers, it is oftentimes challenging to find a lawyer willing to continue pursuing litigation after the migrants return home once their visas expire. 

 
A. U.S. Department of Labor 
Until 2009, the U.S. Department of Labor (USDOL) did not have formal responsibility to enforce the H-2B program regulations; that power rested with the Department of Homeland Security (DHS).140   However, DHS has since delegated enforcement authority over the H-2B regulations to the USDOL’s Wage and Hour Division (WHD).141  A WHD enforcement action may result from a routine inspection or an informal complaint from any person. If a worker complains, efforts are made to protect the confidentiality of the complainant.  An employer being investigated must produce to WHD the information that is requested within 72 hours of notice. No employer or agent may interfere with any official investigating the H-2B program.142  WHD may seek injunctive relief and recover unpaid back wages and other money owed to workers, or assess civil monetary penalties up to $10,000 per violation.143  Workers do not receive any portion of civil money penalties.  Rather, the penalties are paid to the U.S. Treasury.
 
1. Debarment 
While WHD has no independent authority to revoke an existing temporary labor certification or bar an employer from future participation in the H-2B program, it may make that recommendation to USDOL’s Employment and Training Administration (ETA) after a final determination of violations.144   The ETA’s authority extends to agents and attorneys who may have assisted the employer. The debarment period must begin within two years of the violation and may only endure between one and three years.145  USDOL publishes the debarment list on its website. 
 
 
 
B. U.S. Department Of Homeland Security
If an employer is found to have substantially failed to meet any of the conditions of the H-2B program or willfully misrepresented a material fact in their petition, the U.S. Department of Homeland Security may deny future petitions from that employer for one to five years.151   In addition, there is an anti-fraud unit housed with the USCIS.  In 2010, DHS was involved in several investigations and prosecutions for construction workers on H-2B visas.152
 
 
 
 
 
C. U.S. Department of State
The Department of State does not pay a significant role in enforcing H-2B workers’ rights either.  The agency continues to distribute anti-trafficking brochures to workers when they apply for their visas at the consular posts abroad. The Department of State does have a specific fraud prevention unit to verify visa petition information, but there is little information about whether it is making an impact on fraud within the H-2B program.
 
D. Private Litigation
Even though H-2B program regulations do not give workers the ability to sue their employer for violations of those regulations, private litigation is still one of the main vehicles to enforce an H-2B workers’ employment and civil rights.  An H-2B worker may have rights under several federal or state employment and civil rights laws that allow a worker to sue their employer in court. When a contract exists, workers may bring a common law contract claim in state court, or in federal court if there are federal statutory claims involved as well.  
 
1. Federal statutes
The Fair Labor Standards Act (FLSA) is the federal wage and hour law that is probably most often used by H-2B workers to recover unpaid minimum and overtime wages.155   Certain seasonal recreational establishments are exempt from the FLSA so those workers will not have be covered.156  Other examples of federal statutes that may offer H-2B workers the ability to enforce their rights in court include, among others, Title VII of the Civil Rights Act, the Age Discrimination and Employment Act, the Trafficking Victims Protection Act, and the Racketeer Influenced and Corrupt Organizations Act. 
 
2. Claims for Breach of Contract
Filing a breach of contract claim is another option for an H-2B worker to directly enforce any rights in the application for temporary labor certification or job order. However, the H-2B program regulations do not explicitly state that a contract is created when a foreign worker accepts an H-2B job and travels to the U.S. to begin employment.157 Whether the job order is an enforceable contract is a matter of state law.158
 
3. Access to Counsel 
As is the case with most temporary nonimmigrant workers, finding a lawyer may be difficult for an H-2B worker due to language barriers, cultural differences, and geographic isolation. Moreover, generally, cases for migrants are complicated because most will have to return to their home countries at some point during the case and will face a geographical divide from their U.S.-based lawyers and the court itself.  Transnational litigation can be complicated.  Many lawyers simply are up to the cost and logistical challenges of managing pending cases for clients who live abroad. Furthermore, because H-2B workers’ jobs are low-wage, many workers are owed damages that are small in size relative to the expense of litigation.
 
a) Legal Services lawyers
Federally funded lawyers may represent only certain classes of immigrants.159 With the exception of forestry workers, individuals with an H-2B visa are ineligible for these free legal services.160  However, there may be an exception if the worker is a victim of domestic violence, human trafficking or another crime.161 USDOL was frank in its assessment that H-2B workers cannot fully their legal rights when it stated in 2011 that “few legal options exist for H-2B workers who feel their work contracts have been violated.”162  Even if H-2B workers are courageous enough to speak out about unlawful conduct at work, they have limited legal options to by themselves hold recruiters or employers accountable.163
 
  • 140. Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 Fed. Reg. 29942 (May 22, 2008) (“Congress has vested the Department of Homeland Security (DHS) with the statutory authority to enforce the H-2B Program requirements and the USDOL possesses no independent authority for such enforcement.”).
  • 141. 8 U.S.C. § 1184(c)(14)(B) and 8 U.S.C. § 1103(a)(6); 8 C.F.R. § 214.2(h)(6)(ix). WHD has authority to enforce H-2B regulations for applications filed on or after January 18, 2009.
  • 142. 20 C.F.R. § 655.50(c).
  • 143. 20 C.F.R. § 655.65(i).
  • 144. 20 C.F.R. § 655.23.
  • 145. Id.
  • 151. 8 U.S.C. § 1184(c)(14)(A)(ii).
  • 152. U.S. Department of State, Trafficking in Persons Report, June 2011, at 377, available at http://www.state.gov/documents/organization/164458.pdf.
  • 155. 29 U.S.C. §§ 201, et seq.
  • 156. 29 U.S.C. § 213(a)(3).
  • 157. Compare the H-2A regulations that explicitly state job orders and certified job orders rise to the level of a binding work contract. 20 C.F.R. §§ 655.102(b)(14), 655.122(q); see also 29 C.F.R. § 501.10(d). 76 Fed. Reg. 15129, at 15143 (March 18, 2011); see also De Leon-Granados v. Eller & Sons Trees, Inc., 581 F.Supp.2d 1295, 1302 (N.D. Ga. 2008) and Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696, 718-19 (E.D.N.C. 2009).
  • 158. 76 Fed. Reg. 15129, at 15143 (March 18, 2011); see also De Leon-Granados v. Eller & Sons Trees, Inc., 581 F.Supp.2d 1295, 1302 (N.D. Ga. 2008) and Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696, 718-19 (E.D.N.C. 2009).
  • 159. 45 C.F.R. Part 1626 (Restrictions on Legal Assistance to Aliens).
  • 160. Legal Services Corporation, Temporary Forestry Workers Now Eligible for LSC-funded Legal Services, Jan. 10, 2008, available at http://www.lsc.gov/media/newsletters/2008/lsc-updates-january-10-2008; Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 540, 121 Stat. 1844, 1934 (2007); By way of contrast, all H-2A agricultural workers are eligible for legal services.
  • 161. See, e.g., Legal Services Corporation Program Letter 05-2 (Oct. 6, 2005), available athttp://www.lsc.gov/sites/default/files/Grants/pdfs/Progltr05-2.pdf.
  • 162. 76 Fed. Reg. 15129, at 15143 (March 18, 2011).
  • 163. Jayesh M. Rathod, A Season of Change: Reforming the H-2B Guest Worker Program, 45 Clearinghouse Review 20, 27 (May–June 2011) (discussing H-2B workers’ limited access to justice).
VII. H-2B WORKER ISSUES

H-2B workers have long suffered violations of their labor rights.  As with other temporary work visas, immigration status is tied to a specific employer. The visa is only valid as long as the worker is employed by the entity that received permission from the U.S. Department of Labor and the U.S. Department of Homeland Security (DHS) to import the worker.  In fact, if an H-2B worker does not report for duty on five consecutive days, the employer must report the absence to DHS.164  H-2B workers may not switch jobs. Because H-2B workers are in this way tethered by their visas to a single employer they are vulnerable to abuse.  Many arrive in the U.S. already in debt because they have had to borrow money to pay fees in order to get the job. Various federal agencies, workers rights advocates, and non-profit groups have reported  on the ongoing mistreatment of H-2B workers generally, and in specific industries, such as forestry, fairs and carnivals, and crab processing.  These reports, as well as the criminal prosecutions and federal lawsuits themselves, document a history of issues with the H-2B program.

 
A. Fraud 
The current structure of the H-2B system does practically nothing to prevent outright fraud.  Without transparency, recruiters are able to make false promises about jobs.165  The U.S. Department of Labor (USDOL) has noted the “increasing evidence of employers and agents filing fraudulent applications — involving hundreds or thousands of requested employees — for non-existent job opportunities.”166  There is no official mechanism to discern the legitimacy of a recruiter who sets up shop in a small rural village and offers jobs in the U.S.  Recent studies suggest prospective H-2B workers are too often defrauded in large migrant sending countries, such as Mexico.
 
 
 
B. Recruitment Fees 
Despite that fact that recruitment fees are illegal, the problem continues.  Workers may even have to take out loans in order to pay fees that they are told are necessary to work in the U.S.  Even though the fee amount may seem excessive, workers often believe it is worth it because of recruiters’ false promises about the amount of money to be earned and the possibility of gaining lawful permanent residence in the United States. Some advocates report that because most prospective H-2B workers are from impoverished communities and are in dire need of jobs, this problem is exacerbated. 
 
[K]ey aspects of the program have long led to human rights violations such as debt peonage, labor trafficking and involuntary servitude. These include the use of an often criminal band of labor recruiters . . . who lure impoverished and desperate foreign workers to jobs [in the U.S.]. . . . Too often, the opportunity to work in the U.S. comes with an intolerably high price tag, for inflated transportation, visa, border crossing and other costs, and for recruitment fees.  Too often, workers literally mortgage family properties in order to meet these obligations.170
 
When H-2B workers are in debt they are more susceptible to forced labor.171  Even the Department of State observed “indebtedness prior to arrival in the United States is a common mechanism of making victims vulnerable to control.”172  USDOL has noticed that effects of this reach beyond foreign workers. 
 
Workers who have heavily indebted themselves to secure a place in the H–2B program may be subject to exploitation in ways that would adversely affect the wages and working conditions of U.S. workers by creating conditions akin to indentured servitude, driving down wages and working conditions for all workers, foreign and domestic.173
 
No federal agency oversees or regulates foreign recruiters or their actions and there are significant issues enforcing the ban on recruitment fees.  
 
1. Practical issues with enforcing recruitment fee ban  
Even though H-2B program rules ban recruitment fees and require the petitioning employer to tell the recruiter to not charge fees, they are difficult to eradicate as a practical matter.174Recruiters are not regulated directly and USDOL has little power to “enforce regulations across international borders.”175  However, a scheme that relies only on an employer’s instruction to refrain from doing something is problematic. 
 
C. Wage Theft
Wage problems are common in the H-2B program. Often simply referred to as “wage theft” this issue amounts to workers not receiving wages that are required by law.  It may be that the hours are not recorded accurately or that there are unlawful deductions from wages for housing, tools, safety equipment or travel.176  Sometimes when workers are paid on a piece rate basis and their rate of work or production level is low (through not fault of their own), employers fail to make up the difference in their wages so that the hourly minimum is received.177  Moreover, most H-2B workers are often not reimbursed for money spent on items which are really for the employer’s benefit, for example the cost of inbound transportation and visa applications, which effectively puts the first week’s pay below the federal minimum level.178   Many lawsuits have been filed and enforcement actions brought on behalf of H-2B workers for wage theft.179  For example, in 2012, USDOL recovered $93,000 in back wages for overtime that was not paid to 72 H-2B workers from Indonesia and the Philippines.180 Over the course of a dozen years, advocates fought for minimum and overtime wages owed to hundreds of H-2B forestry workers employed by several different companies, resulting in several million-dollar settlements.  In 2011, workers’ rights groups even filed a complaint under the North American Agreement on Labor Cooperation against two amusement park companies alleging numerous wage violations.181
 
D. Retaliation
H-2B program regulations do not protect workers from retaliation.  However, various federal statutes that may apply do prohibit any retaliation against workers who assert their rights.  Even so, H-2B workers are reluctant to complain. This is due in no small part to their cultural, linguistic and often geographical isolation, as well as being unaware of protections from retaliation under various federal laws that may apply to them.  Furthermore, as the Department of State recently found: “recruiters discouraged former workers from reporting labor violations, claiming that U.S. embassies or consulates would not grant future visas for those who complain.”182   To be sure, there have been instances of outright intimidation. For example, after one federal wage case was filed, “a labor recruiter threatened to burn down a worker’s village in Guatemala if he did not drop his case.”183  While U.S. workers may freely change jobs when dissatisfied with conditions on the job, H-2B workers are confronted with the stark choices of suffering in silence, deportation, or joining the ranks of the undocumented.184
 
E. Human Trafficking and Severe Labor Exploitation
Numerous H-2B workers have been victims of human trafficking.185  As of June 2013, an ongoing case in Louisiana provides a compelling example of severe labor exploitation faced by many H-2B workers that borders on modern day slavery.186  The lawsuit alleges that hundreds of Indian workers paid recruiters up to $20,000 each to work repairing damaged oilrigs after Hurricane Katrina. The workers were promised lawful permanent residence for themselves and their families.
 
However, they received only temporary H-2B visas and were required to pay $1,050 a month to live in “overcrowded, unsanitary, racially segregated and guarded” labor camps.187  Their passports and visas were confiscated to guarantee payment of their recruitment fees and when they complained about the situation, they were threatened with deportation.188 The employer asked DHS for advice on how to fire the H-2B workers.  An official advised as follows:  “Don't give them any advance notice. Take them all out of the line on the way to work; get their personal belongings; get them in a van, and get their tickets, and get them to the airport, and send them back to India.”189
 
F. Lack of Portable Justice
As with other nonimmigrant visa programs, the H-2B scheme does not set up a way for workers to enforce their rights or denounce abuses when they return home after the work period ends, as the terms of their visa require.   Still, lawyers who represent H-2B workers routinely continue advocating for their clients even after the workers return to their homes abroad.  However, transnational litigation is wrought with challenges.  For example, H-2B workers who are plaintiffs in lawsuits regarding problems with their job and need to return to the U.S. to give testimony at trial must apply for a separate visa or humanitarian parole. The same is true for workers who are injured on the job and require continuing medical treatment in the United States. The process of seeking this sort of immigration relief is complicated and costly, oftentimes itself preventing access to justice for employment and civil rights suffered while working in the United States.
 
G. Rules Do Not Adequately Protect U.S. Workers 
There is a concern that employers will prefer H-2B workers instead of U.S. workers simply because they are less expensive over the long run. However, the petitioning employer is only required to state that it attempted to find U.S. workers to fill the jobs.  This so-called “attestation-based process” inadequately protects U.S. workers from discrimination.  One audit found “a pattern of noncompliance or avoidance of demonstrating compliance,” as well as “increasing evidence . . . of violations rising to the criminal level.”190  Some employers have attested when they did not in fact comply with the rule and did “not appear to be recruiting, hiring and paying U.S. workers, and in some cases the H-2B workers themselves, in accordance with established program requirements.”191  A second audit confirmed that the attestation model was weak and in need of reform.192
 
  • 164. 20 C.F.R. § 655.20(y).
  • 165. U.S. Department of State, U.S. Consulate Monterrey, Mexico, Misrepresentations By Staffing Agencies Under The H-2B Temporary Worker Program, May 28, 2009, available at http://www.cablegatesearch.net/cable.php?id=09MONTERREY201.
  • 166. 76 Fed. Reg. 15129, at 15132 (March 18, 2011).
  • 170. Rebecca Smith, National Employment Law Project, Letter to Michael Jones, U.S. Department of Labor, Comments on RIN 1205-AB58, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, May 17, 2011, at 3 (“Dozens of criminal and civil prosecutions have been launched against employers and recruiters for filing fraudulent applications for non-existent jobs, for race and gender discrimination, for human trafficking and wage and hour violations.”) available at www.nelp.org/page/-/Justice/2011/CommentsonProposedRulesTemporaryEmploym...
  • 171. For example, 39 H-2B Filipino workers were forced to work in country clubs and hotels for a staffing company that threatened to have the workers arrested and deported if they did not work, knowing they faced serious economic harm and possible incarceration for nonpayment of recruitment fee-related debts back home. See U.S. Department of Justice, Florida Couple Sentenced in Forced Labor Conspiracy to Exploit Filipino Guest Workers (December 10, 20120), describing criminal prosecution U.S. v. Manuel, et al., 9:10‐cr‐80057–KAM (S.D. FL. 2010) (defendants pled guilty and were sentenced), available at http://www.justice.gov/printf/PrintOut3.jsp.
  • 172. U.S. Department of State, Trafficking in Persons Report, June 2011, at 377, available at http://www.state.gov/documents/organization/164458.pdf.
  • 173. 77 Fed. Reg. 10038, at 10112 (Feb. 21, 2012).
  • 174. 8 C.F.R. § 214.2(h)(6)(i)(B).
  • 175. 75 Fed. Reg. 6884, at 6926 (Feb. 12, 2010) (discussion in H-2A program context, same principle applies).
  • 176. Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States, p. 18 (February 2013) available at http://www.splcenter.org/sites/default/files/downloads/publication/SPLC-....
  • 177. Id.
  • 178. See Rivera v. Brickman Group, Ltd, 2008 U.S. Dist. LEXIS 1167 at *26 (E.D. Pa. Jan. 7, 2008); and Rosales v. Hispanic Employee Leasing Program, LLC, 2008 U.S. Dist. LEXIS 9756, at *3 (W.D.Mich. Feb. 11, 2008),
  • 179. Government Accountability Office, H-2B Visa Program: Closed Civil Criminal Cases Illustrate Instances of H-2B Workers Being Targets of Fraud and Abuse, GAO-10-1053 (Sept. 2010), available at http://www.gao.gov/new.items/d101053.pdf.
  • 180. U.S. Department of Labor, WHD, South Dakota's Custer State Park Resort to pay 72 foreign guest workers more than $93,000 in back wages, (January 18, 2012), available at http://www.USDOL.gov/whd/media/press/whdpressVB3.asp?pressdoc=Southwest/....
  • 181. AFL-CIO, available at http://www.aflcio.org/mediacenter/prsptm/pr09192011b.cfm?RenderForPrint=1
  • 182. U.S. Department of State, Trafficking in Persons Report 2011, at 377 (June 2011), available at http://www.state.gov/documents/organization/164458.pdf.
  • 183. Recinos-Recinos v. Express Forestry, Inc., 2006 U.S. Dist. LEXIS 2510 (E.D. La. 2006) (FLSA action on behalf of 300 predominantly Guatemalan and Mexican H-2B forestry workers).
  • 184. Meredith Hobbs, First Trafficking Suits Filed as Part of Huge Pro Bono Effort, Daily Report (June 3, 2013), available at m/jsp/article.jsp?id=1202602511257&First_Trafficking_Suits_Filed_as_Part_of_Huge_Pro_Bono_Effort&slreturn=201305071. While changing employers is conceivable, it requires an H-2B worker finding a new employer willing to file the necessary paperwork prior to the current visa’s expiration.
  • 185. See, e.g., U.S. Equal Employment Opportunity Commission, EEOC Resolves Slavery and Human Trafficking Suit Against Trans Bay Steel for an Estimated $1 Million, Dec. 8, 2006, available at http://www.eeoc.gov/eeoc/newsroom/release/12-8-06.cfm (describing settlement on behalf of 48 Thai H-2B welders who paid exorbitant fees to recruiters and were held against their will, passports confiscated and forced to work without pay).
  • 186. David v. Signal International, Complaint, Case No. 2:2008cv01220 (E.D. La. Mar. 7, 2008); see also Dan Rather, An American Nightmare, Huffington Post (Nov. 10, 2011), available at http://www.huffingtonpost.com/dan-rather/an-american-nightmare_b_1086537....
  • 187. The EEOC has also sued the employer for national origin and race discrimination because the Indian H-2B workers did not receive the same treatment as similarly employed U.S. workers. EEOC v. Signal International, LLC, Case No. 1:2011cv00179 (S.D. Miss, April 20, 2011), available at ____; EEOC Sues Marine Services Company for Labor Trafficking, Discrimination (Apr. 20, 2011), available at http://www.eeoc.gov/eeoc/newsroom/release/4-20-11a.cfm.
  • 188. David et al. v. Signal International, Plaintiffs’ Memorandum Of Law In Support Of Class Certification, Case No. 2:2008cv01220, (E.D. La. Feb. 1, 2011), available at http://www.splcenter.org/sites/default/files/downloads/case/signal_class....
  • 189. Julia Preston, Suit Points to Guest Worker Program Flaws, The New York Times (Feb. 1, 2010), available at http://www.nytimes.com/2010/02/02/us/02immig.html?hpw.
  • 190. 76 Fed. Reg. 15129, at 15132 (March 18, 2011).
  • 191. Id.
  • 192. U.S. Department of Labor, Temporary Non-agricultural Employment of H-2B Aliens in the United States, Feb. 21, 2012, at 12, available at http://www.ofr.gov/OFRUpload/OFRData/2012-03058_PI.pdf. 76 Fed. Reg. 15129 (March 18, 2011).
VIII. STALLED 2012 H-2B WORKER PROTECTION RULES

During the first Obama administration, the U.S. Department of Labor (USDOL) undertook an extensive review of the H-2B program regulations and decided that new substantive rules were necessary to protect workers from exploitation.193  Behind the proposed changes was the notion that the USDOL should not ignore “successful criminal and civil prosecutions, which demonstrate the abuse of the H-2B program.”194  The massive new rules included a number of worker safeguards, including, for example, disclosing to workers the terms of their employment, wage guarantees, explicitly placing the obligation to pay visa fees on the employer, anti-retaliation protection, and barring employers from confiscating workers’ passports.195  The new H-2B rules would have also included important changes strengthening U.S. worker recruitment and requiring disclosure of information related to foreign recruitment.  These rules were controversial and while they were set to take effect in April 2012, they never did.196  Employers and various industry interest groups filed a lawsuit against USDOL, challenging the agency’s authority to write and implement any substantive H-2B worker protection rules.197  A federal district court in Florida agreed and issued a preliminary injunction stopping the 2012 H-2B rules before they even went into effect.198  In April 2013, the Eleventh Circuit Court of Appeals affirmed that decision.199  A similar challenge is now pending in the Third Circuit Court of Appeals.200  Both the USDOL and the U.S. Department of Homeland Security strongly disagree with the Eleventh Circuit and are vigorously defending USDOL’s rulemaking authority in the Third Circuit case.201  Workers and their advocates continue to press for reform.

 
A. Controversy 
The proposed 2012 H-2B rules were controversial from the outset.  Employers warned that the new H-2B worker protection rules would result in job losses for U.S. workers.202  Some predicted that companies would stop using the H-2B program altogether.  Business immigration lawyers objected as well, forecasting that the rule would “make it exceedingly difficult for employers to temporarily supplement their workforces with H-2B workers.”203  On the other hand, economists and workers’ rights organizations supported the new rules for going “a long way towards eliminating the history of abuses ranging from labor violations to discrimination, wage and hour violations, visa fraud, debt peonage, involuntary servitude and labor trafficking that have long plagued this under-regulated program.”204 Noting that the gravamen of the employers’ challenge  to the new worker protection rules was USDOL’s authority, some advocates argue that the employers’ challenge was particularly transparent because USDOL has been involved with the H-2B program for 20 years without opposition. 
 
Indeed, not until DOL proposed a wage rule that will lead to fair wages that better approximate the market wage for U.S. and H-2B workers across the country did DOL’s rulemaking authority become an issue for the employers.205
 
 
 
  • 193. 76 Fed. Reg. 15129 (March 18, 2011).
  • 194. Id. at 15132.
  • 195. 77 Fed. Reg. 10038, at 10156 (Feb. 21, 2012).
  • 196. Id.; U.S. Department of Labor, News Release, US Labor Department issues proposed rulemaking revising the H-2B Program, Mar. 17, 2011, available at http://www.USDOL.gov/opa/media/press/eta/ETA20110384.htm.
  • 197. Bayou Lawn & Landscape Servs. et al. v. Sec. of Labor, Complaint, Case No. 3:12cv183/MCR/CJK, (N.D. Fla. April 16, 2012), available at http://www.chamberlitigation.com/sites/default/files/cases/files/Bayou%2...(Complaint).pdf
  • 198. Bayou Lawn & Landscape Servs. et al. v. Sec. of Labor, Order, Case No. 3:12cv183/MCR/CJK, (N.D. Fla. April 26, 2012), available at http://www.chamberlitigation.com/sites/default/files/cases/files/2012/Ba...(Court%20Order%20Granting%20Preliminary%20Injunction).pdf.
  • 199. Bayou Lawn & Landscape Servs. et al. v. Sec. of Labor, --- F.3d ---, 2013 WL 1286129, No. 12-12462 (11th Cir. Apr. 1, 2013).
  • 200. Louisiana Forestry Ass'n v. Solis, 889 F. Supp. 2d 711 (E.D. Pa. 2012) concluded that USDOL does have independent H-2B rulemaking authority.
  • 201. 78 Fed. Reg. 24047, at 24055 (April 24, 2013).
  • 202. See, e.g., American Hotel and Lodging Association, Letter to Michael Jones, U.S. Department of labor, Comments on RIN 1205-AB58 – Temporary Non-Agricultural Employment of H-2B Aliens in the United States, (May 17, 2011) (“The proposed rule is an unnecessary assault against lodging establishments that utilize H-2B workers and will cause significant job reductions of full-time American workers.”), available at http://www.regulations.gov/#!documentDetail;D=ETA-2011-0001-0406.
  • 203. See, e.g., Bender’s Immigration Bulletin, Comments on proposed H-2B rule revision, (May 19, 2011), available at http://bibdebb.blogspot.com/2011/05/comments-on-proposed-h-2b-rule-revis....
  • 204. Rebecca Smith, National Employment Law Project, Letter to Michael Jones, U.S. Department of Labor, Comments on RIN 1205-AB58, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, (May 17, 2011), available at www.nelp.org/page/-/Justice/2011/CommentsonProposedRulesTemporaryEmploym... see also J. Scott, SEIU Counsel, Letter to Michael Jones, U.S. Department of Labor, Comments on RIN 1205-AB58, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, May 17, 2011, at 2 (The Service Employees International Union labeled the proposed revisions as “a reasonable balancing of the rights of workers and the needs of employers.”).
  • 205. Mary Bauer, Examining the Role of Lower-Skilled Guest Worker Programs in Today's Economy, Testimony 
before the Subcommittee on Workforce Protections of the Education and the Workforce Committee U.S. House of Representatives (March 14, 2013).

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