On December 15, 2022, the U.S. Department of Homeland Security (“DHS”) published a temporary final rule (“TFR”) confirming it will once again expand a notoriously abusive work visa program. DHS will issue 64,716 supplemental visas—20,000 to people from Haiti and Northern Central American countries, and just under 45,000 to people who have received H-2B visas or H-2B status in the last three fiscal years. DHS’s TFR marks the fifth year the agency has expanded the H-2B program without meaningfully protecting workers’ rights.
What exactly is the H-2B program and what does this TFR mean? Here’s what you need to know:
What is the H-2B program?
- The origins of the H-2B program—and its agricultural counterpart, the H-2A program—stem from a long history of excluding Black people, indigenous people, and people of color from the benefits of citizenship. The U.S. Constitution and racist laws have enabled white people to enslave Black people and our legal system continues to enable corporations to suppress workers’ wages and efforts to organize against unconscionably low pay and dangerous working conditions. The H-2 programs represent the latest iteration in a long line of evolving policies and programs—like segregationist Jim Crow laws and the Bracero Program—that harm Black and Brown workers.
- In 1986, Congress amended the Immigration and Nationality Act (“INA”), the most important U.S. federal immigration law, to create two separate temporary work visa programs—the H-2A program for agricultural jobs and the H-2B program for non-agricultural jobs. (Congress created the original H-2 program in 1952.) Through the 1986 amendment, Congress gave DHS, and its predecessor agency, the INS, the authority to issue 66,000 H-2B visas each year. Many people call this limit the “H-2B visa cap.” But starting in 2015, Congress carved out an exemption to the cap, giving DHS new authority to issue visas beyond the cap.
- Workers with H-2B visas receive temporary permission to work in the United States for one employer. If that employer violates their rights, it’s nearly impossible for workers to leave that employer and move to another.
- U.S. businesses employing H-2B workers must certify to the government that they won’t violate U.S. laws. But they routinely do. Unscrupulous businesses force H-2B workers into debt to pay for jobs, commit wage theft, discriminate, compel people to work in unsafe conditions, and retaliate against workers who dare to speak out about abuses. (You can read more about these abuses in CDM’s investigative reports on the H-2B program and our lawsuits.)
Does the H-2B program protect workers at all?
The government often touts the H-2B work visa program as a win-win-win for businesses, internationally recruited workers, and governments. The story goes like this: U.S. businesses need workers, and workers from Mexico and other countries need jobs. The H-2B program gives the U.S. government a tool to manage migration by issuing workers temporary visas for jobs without a path to citizenship. But this story ignores that the H-2B program’s structure enables employers to violate workers’ rights. If workers speak out about abuses, they risk losing their jobs, visas, and authorization to work in the United States. Current program regulations make it nearly impossible for workers to leave an abusive employer and get a new H-2 job.
When is DHS issuing the newly announced 64K+ supplemental visas?
DHS is issuing the supplemental H-2B visas now, at the beginning of the fiscal year. (The federal government’s fiscal year began on Oct. 1, 2022.)
Why is DHS issuing these visas now?
In an earlier announcement about the TFR, DHS said it needs to issue the visas now “to meet the needs of American businesses” that are demanding workers. We’ve all seen the signs in businesses’ windows with anti-worker messages like, “nobody wants to work anymore.” While we recognize that inflation is high and unemployment is relatively low, it’s critical to understand that corporate profits have soared, and the federal minimum wage hasn’t budged since 2009! Too often, we see U.S. businesses paying below-market wages to H-2B workers—sometimes wages that only amount to a few dollars an hour. So if businesses are clamoring for more H-2B visas, they must pay better wages.
Remind me again: who will get the visas?
DHS is reserving 20,000 visas for people from Haiti and Northern Central American countries and nearly 45,000 for “returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.”
Why Haiti and Central America?
Forcibly displaced people in Haiti and Central America are fleeing horrific violence, including violence against trans people, and climate-crisis disasters. Many desperately hope to find safety in the United States through asylum and other forms of immigration relief. The Administration appears to see the H-2A and H-2B programs as a strategy for addressing these people’s urgent humanitarian needs. But this policy is deeply misguided: the H-2 programs do not give anyone safety, permanency, or family unity in the United States. Currently, at best, these programs offer a temporary job. And at worst, they enable employers to commit labor abuses without accountability.
What about protections for workers?
DHS has pledged to “institute robust protections for U.S. and foreign workers alike,” using similar language to what it said in May 2022. But so far, these protections are not enough. Most weeks, CDM hears from dozens of workers experiencing abuses in the H-2 programs—from fraud and discrimination in recruitment in Mexico to wage theft and dangerous workplaces in the United States. H-2B workers face unfair hurdles in getting legal representation to address these abuses because current funding rules prohibit legal services organizations from representing most H-2B workers.
Didn’t I hear about another upcoming H-2 rule that will protect workers?
Yes. The U.S. Department of Labor (“DOL”) tweeted a hopeful message for workers and advocates several months ago. In the tweet, DOL said, “Worker advocates have raised serious concerns about the H-2 programs. @USDOL has heard you. We continue to review the H-2A rule proposed by the last administration, and intend to undertake additional rulemaking in the H2 programs to promote worker voice and worker protections.”
So what happened with those worker protections?
In its earlier announcement about the TFR, DHS affirmed that it is still working with DOL on new H-2 rules that will better protect workers. It promised to publish a notice of proposed rulemaking “[i]n the coming months.” Additionally, the White House has convened an H-2B Worker Protection Taskforce “focus[ing] on (1) threats to H-2B program integrity, (2) H-2B workers’ fundamental vulnerabilities, including their limited ability to leave abusive employment without jeopardizing their immigration status, and (3) the impermissible use of the program to avoid hiring U.S. workers.” This Taskforce is “assess[ing] a variety of policy options to address these issues and will provide an opportunity for relevant stakeholders to offer input. The work of the Taskforce will build on ongoing efforts in both departments to reform the H-2 temporary visa programs.”
What is CDM doing to defend workers’ rights in the H-2B program?
Since the transition, CDM and Migration that Works, a coalition we chair, have pushed the Administration to protect workers’ rights in the H-2 programs. We’ve urged the Administration to make it easier for workers to leave abusive employers and hold employers accountable for discriminating against workers, committing wage theft, and violating the programs’ rules. We’ve also continued to call in DHS to join the DOL in establishing a process for supporting workers with administrative immigration relief. And Migration that Works has led the effort to urge the Administration to make data about these programs more transparent—data that will help workers and advocates hold the government and employers accountable for abuses against workers. Many of our policy recommendations do not require the government to change regulations: they merely require the Administration to prioritize workers’ rights.
What can I do to support workers?
Make your voice heard. When DHS and DOL announce new H-2 rules, we will invite you to submit a comment supporting workers’ rights. We expect that U.S. businesses will flood the comments with anti-worker demands. Workers and their advocates and allies need to send a loud and clear message to the Administration to support meaningful protections for workers. And we invite you to consider donating to Centro de los Derechos del Migrante, Inc. to support our administrative advocacy and our efforts to center workers’ rights in the H-2 programs.