CDM’s comment in support of DHS’s proposed rule “Modernizing H-2 Program Requirements, Oversight, and Worker Protections”

November 20, 2023

Submitted through: https://www.regulations.gov/commenton/USCIS-2023-0012-0001

To: Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security

Re: Modernizing H-2 Program Requirements, Oversight, and Worker Protections, Doc. No. USCIS-2023-0012-0001, 88 Fed. Reg. 65040 (September 20, 2023)

Dear Secretary Mayorkas and Chief Nimick:

Centro de los Derechos de Migrante, Inc. (CDM) writes in support of key changes in the Department of Homeland Security’s proposed rule “Modernizing H-2 Program Requirements, Oversight, and Worker Protections.” The proposed rule would strengthen worker protections in the H-2 programs, reflecting longstanding policy recommendations from workers and advocates. 

Centro de los Derechos del Migrante is a founding member of Migration that Works, which has submitted a separate comment in support of the proposed rules, and joins a coalition comment of worker advocates supporting the proposed rules. CDM endorses all recommendations made in the Migration that Works comment. We submit this supplementary comment to provide additional information about the importance of key proposals and suggestions for strengthening them, highlighting the perspectives of former H-2 workers. 

• Our Organization

Founded in 2005, Centro de los Derechos del Migrante (CDM) supports Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm people in the H-2A and other temporary work visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM also co-founded and chairs Migration that Works, a coalition of labor, migration, civil rights, and anti-trafficking organizations and academics advancing a labor migration model that respects the human rights of workers, families, and communities.

In addition to providing legal support to Mexico-based migrant workers, worker engagement and leadership development are central to CDM’s mission. Since 2006, CDM has convened the Comité de Defensa del Migrante (Migrant Defense Committee, or “Comité”), a group of current and former migrant workers in the H-2 and other programs. The Comité works to empower and organize migrant workers at work in the United States and in their home communities, to create a culture of informed migration, and to center migrant workers’ perspectives in conversations about policies that affect them. Working in partnership with the Comité and other worker leaders, CDM conducts extensive outreach in H-2A and H-2B workers’ home communities and regions of employment each year, building relationships that guide our policy priorities.

• Comments on the Proposed Rule

In preparing the comments below, CDM conducted focus groups and interviews with over 25 current and former H-2 workers and other members of H-2 sending communities with experience in temporary work programs in the United States, including members of the Comité. The workers who contributed to these comments generally expressed optimism about the proposed changes’ impact on the H-2 programs and identified several opportunities for the Department to further strengthen the regulations to better protect workers. 

This comment does not address all aspects of the proposed changes that are relevant to CDM’s work, as CDM adopts the Migration that Works comment which is broader in scope. Instead, we highlight key proposals that are of particular interest to CDM and the migrant workers we work alongside. In addition, we call on the Department to avoid missing the opportunity to implement protective measures against discrimination, which is pervasive in the H-2 programs.

• Grace periods for workers whose employment is terminated before their contract ends or who otherwise leave their employment (proposed 8 CFR 214.2(h)(11)(iv)), 214.2 (h)(13)(i)(C)). 

CDM strongly supports the proposed rules’ creation of grace periods allowing H-2 workers to remain in the country without losing status after their employer’s petition is revoked, after being terminated, or after any other cessation of employment before the end of the H-2 contract period. For the reasons described in the Migration that Works comment, establishing grace periods is essential to allowing H-2 workers sufficient time to respond to the unexpected loss of employment by seeking new H-2 employment, exploring their legal options, or organizing their departure from the United States.

While all the H-2 workers CDM spoke with in the preparation of this comment were in favor of the creation of a grace period like the one proposed, they overwhelmingly identified a critical limitation of this proposal: during the grace periods, workers would not have access to work authorization or any other source of support. An H-2B worker in Maryland’s crab industry asked:

How am I going to support myself during the 60 days? How can I support myself if I don’t have a work permit? Even if I find a new employer, how am I going to support myself during that period [before starting the new job]? Where am I going to live? . . . I think there needs to be some sort of economic support for food, housing.

The process of finding a new H-2 job, applying for it, and traveling to it will likely be lengthy even in the best-case scenario following a sudden end to employment with one H-2 worker, and H-2 workers and their families are highly unlikely to have savings they can fall back on during the time between jobs. Another H-2B worker explained:

The grace period seems really good to me because it gives you the opportunity to figure out what to do and get organized. It would be important to have a work permit with this immediately because the time it takes to find a new employer will make [using the grace period] difficult.

The proposed portability provisions will not adequately address this issue because they would only allow workers to start new employment in the same visa category, severely limiting their options. The high prevalence of blacklisting in the H-2 programs will make the search for a new H-2 job especially onerous, causing further delays. As a former H-2 worker explained:

All of the [H-2] bosses communicate with each other, so how are you going to find work with another employer? Sometimes, they even lie, because if they’re unhappy with you they want to bury you–they don’t let you work with any other company. Since [portability] is only available for H-2 jobs, I think it will be difficult to use.

A former H-2B worker in the carnival industry echoed this sentiment:

If they’re giving me the benefit of staying [during the grace period], but I can’t work any job except in the visa category I’m in, and if in the area where I work all of the bosses communicate with each other, it’s going to be really hard.

Providing temporary, unrestricted work authorization for the duration of the grace period is critically important to make it a real option for workers to quit an abusive H-2 job and find a new one. We understand that the Department has identified potential operational challenges to allowing interim authorization. We strongly urge the Department to prioritize overcoming these challenges, as access to unrestricted interim work authorization is critical to making it feasible for H-2 workers to take advantage of the proposed grace period. The Migration that Works comment describes one possible solution; we ask that the Department carefully consider it and not lose this opportunity to more meaningfully improve flexibility for H-2 workers. Creating this flexibility would be consistent with section 214(c)(1) of the Immigration and Nationality Act (INA), as well as with the Department’s broad authority to define the time periods and conditions of any nonimmigrant’s admission to the United States under section 214(a)(1) of the INA.  As described in greater detail in the Migration that Works comment, the Department already issues guidance to H-2A employers who are eligible to take advantage of the limited portability provisions in the current regulations indicating that “[t]he employee’s unexpired Form I-94 indicating his or her H-2A status” qualifies as acceptable proof of employment authorization, demonstrating that the administrative challenges the Department identifies are surmountable. 

Finally, in addition to granting H-2 workers work authorization during the grace period, the Department should also use this rulemaking to clarify that otherwise eligible workers can qualify for unemployment benefits during the grace period. Moreover, the grace period proposal would better serve its intended purpose of “alleviat[ing] some fears held by H-2 workers who are facing abusive employment situations . . . but are reluctant to leave such employment” if it were a minimum of 90 days long, with extensions available for injured workers, and if workers had access to more than one grace period in a single period of admission. The rationale for these recommendations is described in detail in the Migration that Works comment.

• Permanent portability (proposed 8 CFR 214.2(h)(2)(i)(I)), 274a.12 (b)(21)). 

We welcome the proposal to allow all H-2 workers to begin work with a new H-2 employer as soon as that employer files a petition on their behalf. With greater flexibility, workers who face abuses in the workplace or who are unjustly fired would have a better chance of finding alternative employment, reducing their risk. We urge the Department to finalize this proposal and  also implement the opportunities to strengthen this provision described in the Migration that Works comment:

• Permit H-2 workers to change their program category from H-2A to H-2B and vice versa.

• Provide I-129 petition information to H-2 beneficiaries and create mechanisms for workers to verify their own immigration status.

• Work with the Department of Labor and State Workforce Agencies to improve the availability of job search resources. 

The latter is especially critical. While the portability and grace period provisions would represent an improvement over the current status quo, they will make little difference to H-2 workers who are unable to directly connect with alternative employers to find new H-2 employment. As another former H-2A worker who worked in Florida put it, “How will you [as an H-2A worker] find another company if you don’t know where to go for work? Especially if it’s your first time coming [to the United States for H-2A work], and the ranches are isolated, how are you going to find another contract?” 

To make portability benefits real, workers identified the crucial need for the Department, in coordination with the Department of Labor (DOL) and other relevant agencies, to ensure that H-2 workers are aware of existing opportunities. An H-2B worker in Maryland’s crab industry explained, “Since I don’t know many employers, [the Department] should facilitate access to  information about where other H-2B companies are so that I can look for jobs with those employers.” Another former H-2A worker emphasized this need, explaining that “whether a worker leaves work on their own or they’re fired, they are disoriented.” Accordingly, the H-2A worker emphasized that workers need information about grace periods and portability, and resources to locate alternative H-2 employment, from the beginning of their H-2 employment in the United States. This way, the former H-2A worker continued: 

If I see something wrong, before telling the employer [and exposing myself to retaliation], I can look for other options, other [H-2] companies to go work at. If I don’t have this information, [the grace period and portability] are not going to serve me, because I’m not going to know where to go.

The worker went on to recommend that employers and the government provide all H-2 workers written documentation describing their rights to grace periods and portability at the beginning of H-2 employment, which includes information on how to access job search resources, like a list of H-2 employers or jobs. As discussed in greater detail in the Migration that Works comment, such a list could be made available and accessible to workers through enhancements to the SeasonalJobs.dol.gov portal and collaborative work with DOL to open state workforce agencies’ job services to H-2 workers seeking alternative employment. A former H-2B worker describes how a platform like this should work:

The government should make an application . . . where employers’ information is available, where I can look for another [H-2B] job in another state that’s relevant to what I know how to do. I should be able to apply for the new job [from my current place of H-2 employment] and send all of my information to [the potential new employer] to see if they are interested in having me work for them. 

In addition to providing workers with real-time access to accurate information about available job opportunities, the Department should also implement mechanisms to facilitate direct communication between workers and their employers during the recruitment process, during the pendency of their employment with their petitioning employer, and when workers are porting from one job to another. This could be accomplished through the enhancement of Seasonal Jobs, or another platform, and would be an important step towards a just recruitment model through which workers would be able to connect directly with vetted, legitimate employers through a multilingual and accessible government database of verified job offers. 

Finally, in addition to information about job search resources, we underscore the Migration that Works comment’s call for the Department to develop a multi-pronged communications strategy to ensure that workers are aware of the changes once implemented, especially the changes regarding grace periods and portability. The Department must ensure that all H-2 workers are aware of their ability to remain in the United States for 60 days following the unexpected end of their H-2 employment and of the resources available to seek new H-2 employment in furtherance of the proposed portability provisions, and should partner with other relevant agencies and community partners to achieve this goal. 

• Improved petitioner accountability for recruitment and other prohibited fees. 

CDM strongly supports the Department’s efforts to more effectively enforce the prohibitions on these recruitment and other unlawful fees that H-2 petitioners and their agents charge workers. A former H-2A worker in the orange harvest explained the importance of these provisions in the context of recruitment fees:

I think that if [the Department] manages to do something for people who are being charged a lot of money, it would have a big impact and be a big help, because . . . to be paying [recruiters] who sometimes charge $2,000, $3,000, or even $4000 . . . we’re working just to pay down our debt. To have some justice, the impact would be good.

• Clarifications to the definition of prohibited fees.

As described in the Migration that Works comment, we welcome the proposed clarifications to the definition of prohibited fees, especially the clarification that “prohibited fees include any fees or penalties charged to workers who do not complete their contracts.” As the Department recognizes, imposing or threatening breach of contract fees and other severe non-monetary penalties on H-2 workers who leave employment before the scheduled conclusion of the work contract is a highly coercive practice that furthers exploitation and labor trafficking in the H-2 programs.  A former H-2A worker who worked in Florida described his experience: 

In my community, there are not many recruiters, so you have to take what you can get if you want to work and have opportunity. I was charged 30,000 pesos [roughly $1,700 in 2023 dollars] for the visa, payable to the recruiter. The recruiter took all this money and said that if we didn’t pay, he wouldn’t take us to work. This is how it works not only in our town. [At the H-2A workplace] there were people from other states who, once we were already in the United States, told me that they weren’t able to get the 30,000 pesos together so they gave the recruiters deeds to their land or papers for their car.

When [other H-2A applicants and I] went to the recruiter’s house, he held a videoconference with the employer. The employer was watching the interview and listening to what one of the recruiters asked . . . After the employer selected us, the recruiter made us sign a promissory note for 200,000 pesos [over $11,000 in 2023], which was his to keep. And he clearly told us that he would keep it until we completed the contract and returned to Mexico; then we could go to him and ask him to destroy the note . . . Before you go to the United States, the recruiter tells you, “Never say that I charged you,” or “Don’t talk about money.” This is a threat.

But [after arriving at the H-2A workplace], I began to think that the employer did know about the money the recruiter had charged, and the promissory note he had required us to sign, because that’s the only way [the employer] could have had us working in that way, without ever leaving, in the conditions that they dictated. Only with the fear of the promissory note would they be able to retain us in a business like that. Someone who had felt free to leave would have left without thinking about it. But people wouldn’t leave because they were trapped. It was my first time [in H-2A employment] but other workers who had had different contracts before said it was the worst place they had ever worked. [But] we couldn’t leave because the owner of the company would say, “If someone escapes from here, I will personally file a report with the consulate that you have escaped.” For that reason, I never wanted to go anywhere –that and the promissory note.

In light of the severe harm that breach fees and other penalties for early termination of H-2 work causes workers, we strongly encourage the Department to adopt the additional language proposed in the Migration that Works comment to explicitly address non-monetary penalties and penalties imposed on workers’ relatives and other community members.

• Due diligence measures employers should take to prevent prohibited fees.

We welcome the Department’s proposal to increase H-2 petitioners’ accountability for prohibited fees charged by their employees and agents. The workers who participated in the preparation of this comment overwhelmingly supported the Department’s clarification and “emphas[is] that it is a petitioner’s responsibility to conduct due diligence” to ensure that recruiters and other agents in its labor supply chain are not charging prohibited fees, even where employers are not in contractual privity with recruiters who are working on their behalf and where recruiters are located entirely out of the United States. Workers were generally optimistic that these provisions would cause employers to be “more careful in the recruitment process,” both with regards to fees charged by third-party recruiters and fees charged by their own employees. 

CDM endorses all of the Migration that Works recommendations provided in response to the Department’s request for comments regarding the types of due diligence efforts H-2 employers should be required to undertake and document. These recommendations include:

• Create mechanisms to directly communicate with workers during the recruitment process and promptly investigate any reports of prohibited fees. 
• Take immediate remedial action in the event the petitioner discovers that a recruiter or other agent has charged or entered into an agreement to charge a prohibited fee. 
• Implement rigorous vetting and monitoring procedures.
• Ensure that all agreements with recruiters provide for a realistic fee structure that will not incentivize recruiters to pass on costs to workers to remain profitable.

The first recommendation is especially critical for these proposed changes to truly benefit workers. To reasonably detect prohibited fees charged during the recruitment process, H-2 employers must establish channels for direct communication with workers and procedures for promptly addressing any abuses the workers report. Workers also emphasize the need for support from the Department and other relevant agencies to facilitate this communication. A member of CDM’s Comité de Defensa del Migrante explains, “The government should have a mechanism that ensures that a worker can directly tell [an employer about recruitment abuses] because otherwise employers wash their hands and say ‘I didn’t know.’” Moreover, the government needs to ensure that employers are accountable for taking immediate action when they learn of abuses in their recruitment chain. As the former H-2A worker who spent several seasons in North Carolina explained, “A problem I see is that when one, as a worker, complains to an employer about a recruiter’s bad treatment, the employer doesn’t take the worker seriously . . . they don’t properly investigate the situation.”  

In the long run, workers emphasize the need to move towards a just recruitment model through which workers would be able to connect directly with vetted, legitimate employers through a multilingual and accessible government database of verified job offers. As a member of the Comité de Defensa del Migrante describes: 

The government should create a platform or application that explains the necessary steps to take, where I as a worker can register to be able to apply for work through that application. Through this application, we can do away with recruiters. I wouldn’t have to pay a recruiter if through this application I can sign up [for H-2A work] myself, the employer can select me through the application, and the government can monitor the process. This way, recruitment fees would be eliminated. 

The workers CDM spoke to in the preparation of this comment were overwhelmingly in support of the creation of a platform like the one described above and identified the potential of this idea to uphold program integrity and facilitate the Department’s more efficient enforcement of the H-2 program rules–in addition to making the proposed portability provisions real as described above. Ultimately, we urge the Department to make every effort possible to move towards a just model of H-2 recruitment by giving workers more information and control over the process. As a former Florida H-2A worker described: 

What workers seek is trust, or the possibility of trust, in the person who offers them work . . . There should be a process by which a worker can have confidence [in an H-2A job opportunity]. For me, that would mean that the worker can verify the type of work, the salary, the housing, and everything that comes with that job. So that we aren’t made to feel inferior, because we need to be able to travel to work with confidence. That’s why we go – to work hard, to contribute, and to be able to go home. Not to be mistreated or cheated out of our money.

• Better program integrity through improved enforcement mechanisms. 

CDM welcomes proposed 8 C.F.R. § 214.2(h)(10), which would improve DHS’s ability to hold H-2 employers accountable for violations of the H-2 rules and related worker protection and immigration laws. These measures would help curb unscrupulous employers’ abuse of the H-2 programs, reducing the risks faced by workers. We also welcome the proposed specification that all mandatory and discretionary bars apply to successors in interest, and we welcome the Department’s clarification of that term, which is crucial to ensure the bars’ effectiveness. 

At the same time, we call on the Department to work to minimize inadvertent harm that an abusive employer’s exclusion would have on workers by creating mechanisms for former employees of a petitioner who has been barred from the H-2 programs to connect directly with alternative H-2 employers. In some H-2 sending communities, there are a limited number of recruiters and employers, and workers face the difficult choice between accepting an abusive H-2 job or no job at all. In such communities, an abusive employer’s exclusion from the program could result in a loss of economic opportunities for workers who might have chosen to accept the job out of economic necessity. This underscores the necessity for the Department to work to create a direct recruitment database as described in the prior sections, which would enable previous employees of an H-2 employer who is subject to a bar to find and apply for alternative H-2 employment.

We join Migration that Works in urging the Department not to reduce the proposed timeframes for bars to approval, but instead strengthen them by permanently banning employers who repeatedly commit offenses subject to mandatory denial from the H-2 programs, as they have demonstrated their inability or unwillingness to comply with the programs’ requirements. We also endorse the Migration that Works recommendation not to limit the discretionary bars to approval provision to a three-year lookback period, as this limitation is unnecessary given that recency is already a factor USCIS is instructed to consider. 

• Anti-discrimination protections.

Discrimination is rampant in the H-2 programs. H-2 employers and recruiters routinely violate laws prohibiting discrimination in hiring and employment based on race, age, sex, and national origin. For example, H-2 employers and recruiters post job advertisements hiring “men only” or male workers who are “19 to 49” years old. Once in the United States, women workers frequently experience sexual harassment and other discrimination.  The United States fails to adequately enforce protections against discrimination, creating perverse incentives for H-2 employers to bypass available U.S. workers and suppress wages and labor standards. 

A former H-2B worker and H-2A applicant who filed a petition challenging gender discrimination in the H-2 programs under the United States-Mexico-Canada Agreement describes the way this unchecked discrimination plays out in her community:

I have tried to apply for H-2A jobs and I have continued facing discrimination. Over the last year, I have come across many H-2A job ads on social media. But [each time], I realized very quickly that I am not eligible: they are exclusively hiring men.

In April 2021, I saw a Facebook ad for farm work in the United States with an H-2A visa. The ad mentioned they were only hiring men. Since I have pressing economic needs, I still decided to submit an application. I filled out the application online that explicitly asked about my gender. I did not receive a response for months. In September, I realized the people hired for that particular job were about to travel to the United States. The group was composed exclusively of men.

Since [2021], I have seen hundreds of men—both from my community and from neighboring ones—travel to work in the United States with H-2A visas. However, I have not seen a single woman afforded the same opportunity.

To help address discrimination in the H-2 programs, the Department should hold H-2 employers accountable for discrimination in recruitment enacted by their employees and agents, in a manner analogous to the proposal to increase H-2 petitioners’ accountability for prohibited fees charged by their employees and agents. The Department should also work with the DOL and other relevant agencies to improve remedies for H-2 workers and applicants who face discrimination. Currently, enforcing Title VII and many other discrimination laws requires workers to exhaust their administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) and obtaining a notice of a right to sue. But the EEOC’s charge filing system is largely inaccessible to H-2 workers: the EEOC’s Charge of Discrimination form is only available in English, the EEOC does not accept charges by phone, and the EEOC’s online portal to receive complaints is inaccessible from outside the United States. To address these inadequacies, and in light of the particular ways that discrimination is enacted in the H-2 programs, the Department should create independent anti-discrimination protections for H-2 workers that are enforceable by the DOL and by private right of action. 

• Conclusion

Centro de los Derechos del Migrante applauds the Department for its efforts to strengthen protections for workers in the H-2 temporary visa programs. The proposed changes address some of the fundamental flaws in the H-2 programs and should be implemented without delay. We urge the Department to additionally adopt the changes we have recommended, which align with its statutory mandate and policy goals.

Sincerely,

Centro de los Derechos del Migrante, Inc.