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H-2B
lawsuit CATA v Chao.
Unlike the
H-2A agricultural guestworker program, which has no limits on the
number of H-2A workers who can be brought into the US, there are
numerical limits on the number of work visas that can be issued
under the H-2B program. The 2006 cap on H-2B workers is
66,000. In response to employer complaints that the cap on H-2B
workers is too low, in 2005, Congress passed the Save Our Small and
Seasonal Business Act. This Act temporarily exempted H-2B
workers who have worked under the program in the last three years
from counting toward the 66,000 cap.
Employers have tried to pass similar legislation in subsequent
years but have been unsuccessful.
 The
H-2B program is rife with exploitation and abuse. As with all
guestworkers, H-2B workers suffer from an imbalance of power with
their employers because their temporary, non-immigrant status ties
them to particular employers and makes their ability to obtain a
visa dependent on the willingness of the employer to make a request
to the U.S. government. H-2B workers and U.S. workers at H-2B
employers lack many of the protections afforded to workers in the
H-2A program,
such as the 3/4 minimum work guarantee, free housing, the special
adverse effect wage rate, and eligibility for federally funded
legal services.
Many H-2B workers begin their employment indebted to recruiters,
contractors, or employers who charge high fees to gain access to the
jobs. Many workers finance the fee payments by taking out high
interest loans or putting the deeds to their homes in the hands of a
labor recruiter as collateral. Once in the US, many workers
face unrealistic productivity requirements and unsafe working
conditions, underpayment for their difficult and dangerous work,
insufficient work, and unsuitable living conditions. Despite
these conditions, these debt-ridden workers are reluctant to
complain because their employers or contractors exercise control
over them and they fear losing their job or not being rehired the
following season.
An excellent
resource on Guestworker Programs in the U.S. is the Southern Poverty
Law Center's
Close to Slavery
H-2B Legislation in the 110th Congress
Senator Sanders Introduces Legislation to Protect U.S. and H-2B
Workers
On September 26, 2007, Senator Sanders (I-VT) introduced the
Increasing American Wages and Benefits Act, S. 2094. The bill would
reform the H-2B guestworker program to ensure the protection of US
and foreign guestworkers by applying many of the same protections
currently available to H-2A workers to H-2B workers, such as
transportation reimbursement, the 75% work guarantee and the
provision of workers’ compensation. The bill also would increase
prevailing wage rates, emphasize the recruitment of US workers, and
authorize the Legal Services Corporation to represent H-2B workers.
In addition, Sen. Sanders’ bill would begin a process of regulating
the international recruitment of guestworkers by labor contracting
firms that are hired by employers in the United States. The
guestworker recruitment system often enables the ultimate employers
to escape responsibility for the mistreatment of the foreign
citizens.
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Congressional Briefings and Hearings on H-2B Forestry Workers in the
109th Congress
Senate
hearing on Forestry workers:
On
March 1, 2006, the Senate Subcommittee on Public Lands and Forests
on the Committee on Energy and Natural Resources held a hearing to
“review the role of the Forest Service and other Federal agencies in
protecting the health and welfare of foreign guest workers carrying
out tree planting and other service contracts on National Forest
System lands, and to consider related Forest Service guidance and
contract modifications issued in recent weeks.”
Witnesses included Mark Rey - Undersecretary of Natural Resources
and the Environment, Department of Agriculture and Victoria Lipnic,
Asst. Secretary of Labor, Employment Standards Administration, as
well as Michael Dale, the Northwest Workers' Justice Project and
Dr. Cassandra
Moseley, Institute for Sustainable Environment, University of Oregon.
The witnesses discussed the problem of worker exploitation. Michael
Dale suggested reforms, including the issuance of regulations by the
Secretary of Labor requiring seat belts
and identification for vehicles transporting forestry workers and
other agricultural workers; improved oversight of working conditions
through the creation of a joint task force between DOL and US forest
management agencies that reports to Congress; and improved ability
of workers to remedy employment violations through access to
federally-funded legal services
For
more information, please see the link below for an article or visit
this link for
witness statements:
Knudson, Tom,
Senators Get Earful on Forest Labor Abuse,
Sacramento Bee, March 2, 2006
House
Briefings and related hearings
On May
18, 2006, Congressman Joe Baca (D-CA), the Southern Poverty Law
Center, and Farmworker Justice cosponsored a briefing on Capitol
Hill to discuss wage-hour abuses and occupational hazards for H-2B
guestworkers in the forestry industry. Representative Joe Baca;
Mary Bauer, Director of the Southern Poverty Law Center’s Immigrant
Justice Program; and forestry workers from Guatemala discussed
problems for forestry guestworkers (“piñeros”), including
underpayment for work performed and workplace injuries and lack of
treatment, and proposed solutions to these problems, including
mandatory vehicle seatbelt and other safety rules, and increased
monitoring by OSHA of the forestry industry. The former girlfriend
of an H-2B piñero worker who was killed in a preventable vehicle
incident described the transportation conditions that led to the
worker’s death. Please see this
article in the Sacramento Bee.
On
February 22, 2006, the House Resources Committee held a briefing to
discuss the situation of H-2B forestry workers
with a focus on safety standards and Forest Service contracting
issues.
Witnesses included Ron Hooper, the Forest Service's Director of
Acquisition Management,
David Minsky, chief of staff for the Labor Department's Wage and
Hour Division, Thomas Galassi, Deputy Director of Enforcement
Programs for OSHA, and Michael Ginley, Director of Enforcement
Policy for
the
Labor Department's Wage and Hour Division.
Please see this
Sacramento Bee article
discussing the hearing.
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Links
for More Information
The
abuse and exploitation of H-2B forestry workers has been extensively
documented by Tom Knudson and Hector Amezcua of the Sacramento Bee
in a series of articles documenting the life of H-2B forestry
workers in the US. Check out these award-winning articles
articles:
The
Southern Poverty Law Center’s Immigrant Justice Project is
representing forestry workers in several cases against timber
companies who have violated labor and wage provisions. For
information about these cases,
please
see this SPLC News Page.
SPLC also has
a booklet,
Beneath the Pines, telling the stories of migrant
pine tree workers.
Access
to legal representation – The Northwest Workers’ Justice Project and
the Brennan Center for Justice filed a complaint under the labor
side agreement to the North American Free Trade Agreement (NAFTA)
seeking access to justice for H-2B guestworkers. For more
information, see the NWJP website and the
Brennan Center's page on immigrant rights.
Gender
Discrimination Claim - In 2002, the EEOC District Commissioner in
New York issued a cause determination that International Labor
Management Corp., a labor recruiter, violated Title VII by denying
women workers H-2A visas and steering them toward the H-2B program,
where there are fewer benefits. A class
action lawsuit has been filed
by Farmworkers Legal Services of New York
(FLSNY) and
Legal Momentum.
Please
also visit these webpages for more information:
Friends of Farmworkers'
H2B info page – This organization includes information
about the H-2B program on their webpage, including information about
wage rates and H-2B labor certification applications.
Rural
Migration News: Webpage includes information about both the H-2A
and H-2B programs.
A statement by the
AFL-CIO: Discusses AFL-CIO’s position on
responsible immigration reform,
including guestworker programs.
CBS news in Miami has
been running a series on the H-2B program that is really powerful.
The links are below.
Part
1:
http://cbs4.com/video/?id=71339@wfor.dayport.com
Part
2:
http://cbs4.com/video/?id=71412@wfor.dayport.com
Part
3:
http://cbs4.com/video/?id=71517@wfor.dayport.com
You
can find written versions of the stories here as well as other links
for this report:
http://cbs4.com/iteam
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Legal Documents
H-2B Statutory
Provisions:
8 USC
§ 1101 (a)(15)(H)(ii)(b) and 8 U.S.C. § 1184 (c)(1), (c)(14), (g)(1)
and (g)(9 .
H-2B Regulations:
20
C.F.R. § 655.1-655.4; 8 C.F.R. 214.2 (h)(6)
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