Workplace Fairness

Menu

Skip to main content

  • print
  • decrease text sizeincrease text size
    text

Foreign Farm Workers Already Face Abusive Conditions. Now Trump Wants to Cut Their Wages.

Share this post

Pedro, a laborer from Chiapas, Mexico, worked 13 hours a day picking blueberries on a farm in Clinton, North Carolina. He had no time off, except when it rained.

“We had no Sundays,” Pedro (a pseudonym to protect his identity after he breached his visa agreement) says in Spanish. Working from May to June under the H-2A visa program for guest farmworkers, he saved only $1,500.

According to Pedro, his work conditions and payment violated the contract he signed when he was recruited by a middleman in Mexico. Still, he could not quit his job. The H-2A program requires guest farmworkers to work only for the employer or association that hires them. 

Pedro was entitled to a $12.67 per hour wage with no overtime, according to the H-2A provisions for North Carolina. However, Pedro says he never received more than $425 a week, or about $4.60 per hour.

“They took away our passport as soon as we arrived,” Pedro explains. His employer tried to dissuade Pedro and his workmates from quitting the job. Still, he ran away, leaving his passport behind. 

“Never in my life [have I] worked this hard, not in Mexico City or back in the fields in Chiapas,” Pedro says. Undocumented and with no official identification, Pedro now works at a construction site in Georgia. “All the other guys stayed in the farm,” he says. “They are afraid of being deported. They don’t want to get in trouble.”

Pedro’s story is all too common. The wage provisions in the H-2A program are “routinely” violated, according to the Washington, D.C.-based nonprofit Farmworker Justice, and, as a recent Center for American Progress report put it, the lack of labor protections for foreign farmworkers like Pedro are already “particularly dangerous.” The H-2A program has led to so much abuse of workers that many liken it to modern-day slavery.

Now, things could get even grimmer, as the Trump administration is proposing to reduce the statutory pay rate for H-2A workers, just months ahead of the presidential elections. 

Workers’ wages are already “extremely low by any measure, even when compared with similarly situated nonfarm workers and workers with the lowest levels of education,” an Economic Policy Institute (EPI) report found in April.

Wage cuts

North Carolina is among the top recruiters of H-2A guest workers in the United States. The state, like the rest of the country, has grown increasingly dependent on this labor force. Nationwide, there has been a fivefold increase in the number of H-2A visas approved since 2005, climbing to 258,000 in 2019. Most of these workers are Mexicans or Mexican-Americans. 

The growing reliance on H-2A visa farmworkers is often linked to a shortage of local labor, even among the undocumented population that comprises at least half of the U.S. agricultural workforce. The reality could be more problematic.

H-2A visa holders “are seen by employers as very productive. Employers often say they are better workers than the locals, but it has nothing to do with their performance,” according to Bruce Goldstein, president of the farmworkers’ rights group Farmworker Justice. “It has to do with the fact that the H-2A visa workers are not free.”

Even undocumented workers, who are not necessarily tied contractually to their employers in the same way as H-2A workers, have more legal recourses to obtain compensation if they claim workplace abuse, according to Goldstein. H-2A workers are excluded from the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), the main labor law that protects farmworkers. That’s why, he says, H-2A guest workers are “very desirable by employers.”

To satisfy the agriculture industry’s desire for guest workers, the Trump administration, contradicting its anti-immigration stance, relaxed the rules around H-2A hiring and exempted farmworkers from a broad ban on foreign labor during the Covid-19 pandemic.

Now, the U.S. Department of Labor is considering publishing changes that would recalculate guest workers’ wages. According to Goldstein and to publicly posted information, the changes could come as early as August

Instead of using a labor market survey, the proposal would allow farms to hire workers at an “arbitrarily lower wage rate,” according to Farmworker Justice. In Florida, for example, the $11.71 per hour wage would be cut by $3.15. 

Though Congress could stop these changes, the Republican-led Senate makes this a remote possibility. Another option is taking the administration to court, although the outcome would be far from certain, Goldstein explains.  

“The only rational explanation for lowering the wages of H-2A farmworkers right now is corporate greed and unquestioning subservience to agribusiness on the part of the Trump administration,” according to the EPI report. 

If implemented, the wage cut would come even as farm owners received as much as $23.5 billion in federal aid due to the pandemic.

The new guidelines would mean that workers deemed “essential” and expected to keep working amid the pandemic, would risk their lives for even less money and no mandate for employers to provide them with Covid-19 protections.

Unfree labor

Violations of the H-2A visa holders’ rights are “rampant and systemic,” according to a 2015 Farmworker Justice report. The Department of Labor “frequently approves illegal job terms in the H-2A workers’ contracts,” its findings show.

Five years after the report, the guest workers’ conditions remain unchanged, according to Goldstein. They are similar to the ones under the Bracero Program—through which millions of Mexican farmworkers labored in the US from 1942 to 1964—which was ultimately terminated because of its notorious abuses, including wage theft, according to the report.

Even when employers comply with the contract obligations, H-2A farm laborers are among the nation’s lowest-paid workers. The Covid-19 pandemic has made their jobs even more dangerous

Farm owners are not mandated by the federal government to provide protective equipment or enforce social distancing in often overcrowded and unsanitary housing facilities, despite the risks to foreign workers’ health, according to Anna Jensen, executive director of the nonprofit North Carolina Farmworkers Project. (State guidelines vary across the country.)

It’s not unusual that laborers are only given one option to buy food, regularly overpriced, or that workers cannot receive visitors, says Jensen. It’s also common that the employers do not reimburse H-2A workers for traveling to the U.S., she adds, a practice that is very often illegal.

The violations often start in the hiring process. Two of the former deputy directors of the North Carolina Growers Association, the largest recruiter of H-2A farmworkers in the state, pleaded guilty in 2015 of fraud related to the program. Another infamousNorth Carolinian farmworker recruiter, Craig Stanford Eury Jr., also pleaded guilty to conspiracy to defraud the U.S.

Many H-2A workers, who aspire to return to the U.S. farms in the following seasons, do not mention their mistreatment for fear of being blacklisted by employers. But even if they wanted to, filing complaints “is really difficult,” Jensen says.

The North Carolina Department of Labor operates a complaint hotline, open only from 8:00 a.m. to 4:45 p.m. Monday through Friday, making it “not very accessible” for many migrant workers, according to Jensen. Twelve to 14-hour workdays, six or seven days a week, make filing a claim virtually impossible for guest farmworkers.

“The H-2A is an inherently abusive program,” Goldstein says. It practically assures employers that even workers who do not stand the poor treatment will not complain, even when their passports are taken away, which could be considered an act of slavery or peonage, according to Goldstein. 

If the Trump administration follows through with its plans, workers like Pedro could be forced to labor under these conditions while taking home even less money than they already make.

This blog originally appeared at In These Times on July 15, 2020. Reprinted with permission.

About the Author: Maurizio Guerrero is a journalist based in New York.


Share this post

Coronavirus has upended many lives, but immigrant journalists on visas face a grim reality

Share this post

For Trey Taylor, moving to New York City was nothing short of a dream come true. The Canadian citizen had worked tirelessly for about two years to secure a work visa that allowed him to work freely within the country. But when the coronavirus pandemic hit, the young journalist was unceremoniously terminated from his position at The Face Magazine. While the loss of a job is devastating for anyone, coupled with the anxiety around finances and securing unemployment, it came with deeper ramifications for an immigrant like Taylor.

With economic uncertainty on the rise and a recession looming, layoffs have hit almost every sector in the U.S., and the media has been no exception. From W Magazine, Conde NastThe AtlanticViceThe Outline, The Face, Culture Trip toThrillist—multiple publications have either laid off their entire staff or have had a significant number of furloughs, mostly as a result of business models that still rely on advertising—now largely dried up—for a significant chunk of revenue.

It did not help that the visa category Taylor was on, O-1B—a non-immigrant visa for individuals “who possess extraordinary ability in the sciences, arts, education, business, or athletics”—was particularly complex. Demonstrating being an “extraordinary artist” meant gathering tons of evidence showcasing his entire life’s work along with a series of expert recommendations and potential job offers from media companies. And the sudden loss of employment meant that Taylor’s visa would expire at the end of June unless he quickly redid the application process, since his status was tied to employment with a specific company.

“To save on costs, the owner of the company [in London] decided to close U.S. operations entirely, meaning that the company I was employed by would be shutting down as of June 30,” he explained. 
He is now working with his lawyer to find a way to put together a sizable portfolio of “proof” in  record time as the U.S. government has suspended the option for expediting a decision within two weeks. For now, his future hangs in the balance.

“That means I am unable to even return home to visit my family,” he said. “It’s a costly, byzantine process and it is causing me a lot of anxiety.”

Sadly, Taylor isn’t alone in this predicament. Just ask Alejandro Filippa, a partner at New York-based law firm Lehach & Filippa,that works with a number of journalists and creatives to help them secure an O-1B visa. Filippa says that while his inbox is always flooded with emails from curious artists, over the past two months, he has received several panicked inquiries from clients questioning “what to do.” 

“Without a new sponsor to employ them, there are certain solutions that can only act as a bandaid to remain in the United States, such as switching to a temporary visitor visa to get one’s things in order or to buy some time perhaps,” Filippa explained.

While some, like Taylor, have chosen to remain in the country as they figure out a solution, others left to go back home when the pandemic started and are now permanently stuck. 

“Jane Smith,” who prefers to use a pseudonym, was ecstatic when brought on board to work with a top financial magazine on an H-1B from Singapore earlier last year. While H-1B continues to be one of the most popular work permit categories, it is still a legally complex and expensive process for the sponsoring employer. Most journalists and artists know it’s a category largely used by finance and tech companies with more resources. Naturally, Smith, who was hired for a top editorial position, considered herself lucky—until now. 

Assuming her job was safe, she decided to return back home to spend the duration of the pandemic with her family. With offices shut for the time being, everyone was stuck working from home anyway, she thought. Weeks into April, panicked messages from colleagues started pouring in, telling her they’d been laid off or furloughed. Soon she received a notice of termination along with a lengthy apology from her superiors explaining they had run out of options. Under the terms of her visa, she cannot be furloughed, leaving them no choice but to end her employment. Employees under H-1B have about 60 days to find another job (within a strict salary bracket and industry) or face deportation—rarely enough time in ordinary circumstances, let alone when it means conducting a remote job search from abroad in the midst of a pandemic. 

“I’m stuck,” she said. “Companies aren’t willing to sponsor right now, as if it wasn’t challenging enough to be looking for a job in journalism. I’m still on a lease and I have furniture, and so much more stuff back in my apartment in America, that I didn’t bring along. It’s an absolute nightmare.”

“Unemployment for the H-1B raises a myriad of problems,” said Florida-based top immigration attorney, Tammy Fox-Isicoff. “Many professionals on the H-1B visa have leases, families in school, own homes, [and] have belongings. These ties can’t necessarily be undone in 60 days or less. Many cannot even travel back to their countries of nationality to due closed borders. There were requests made to the administration to offer some type of ameliorative assistance to these individuals. No assistance will be forthcoming.”

President Donald Trump has indicated he would halt issuing new work visas across multiple categories including H-1B to counter the soaring unemployment within the country.

For immigrant journalists of color, many of whom hail from disadvantaged backgrounds, all this can mean going back home for good and leaving their entire lives and career prospects behind.

“I’ve lived here for just over three years. I’ve established a home, career, a relationship here,” said Taylor. “I cannot fathom having to leave at this point. I’ve sacrificed enough as it is just to be here, and would hate to have to leave due to circumstances beyond my control. I was hoping to apply for a green card soon, but I’ve been told that is just impossible. My heart truly goes out to other immigrants, especially immigrants of color and those with dependents. It’s never easy to start a new life anywhere, but for immigrants there is seemingly so much more to lose.”

This blog originally appeared at Daily Kos on June 23, 2020. Reprinted with permission.

About the Author: Jeena Sharma is a writer and editor based in New York City. She writes extensively about politics, social justice, fashion, and culture.


Share this post

Business groups fear Trump’s extended curb on foreign workers will backfire

Share this post

Business, trade and free market groups say the restrictions will stymie job creation, decrease competitiveness, and perhaps slow economic recovery.

Business leaders fear that President Donald Trump’s extension of restrictions on foreign worker visas could backfire on the limping economy.

Business, trade and free market groups contend the restrictions — which took effect Wednesday — will stymie job creation, decrease competitiveness and potentially slow the recovery, despite the administration’s predictions that they would free up 525,000 jobs for Americans over the remainder of the year.

“It’s going to be very disruptive to a whole lot of companies. … This is going to be bad for job growth, it’s going to be bad for economic growth,” said Jon Baselice, executive director of immigration policy at the U.S. Chamber of Commerce.

Visa recipients help drive growth and create jobs, he said, “and that’s going to help get us out of the economic situation that we find ourselves in.”

Trump on Monday announced he was extending restrictions that bar most categories of foreign workers through the end of the year, citing “expanding unemployment and the number of Americans who are out of work.”

Critics say the move is shortsighted.

“This order will have catastrophic negative economic consequences on the United States … and generally slow the economic recovery,” Alex Nowrasteh, director of immigration studies at the libertarian Cato Institute, told POLITICO, specifically citing H-1B visas for skilled workers.

“H-1Bs are much more likely to patent, and to innovate,” he said, which creates “new businesses, new productivity, [and] new job opportunities for Americans.”

But in the other corner, anti-immigration groups, like the Federation for American Immigration Reform, have hailed the move as Trump putting American workers “first.”

The executive order applies to H-1B visas, a program frequently used by the tech industry that allows U.S. employers to temporarily hire non-immigrant workers in high-skilled specialty occupations, as well as H-4 visas for spouses of H-1B workers. It also applies to L visas, which allow companies to transfer a manager or specialized worker from a foreign office to a U.S. office; most J visas for work- and study-exchange programs; and most H-2B visas for temporary non-agricultural workers.

Attorneys say the administration’s targeting of the H-1B and L visa categories is creating anxiety within the business community as it struggles to climb out of the pandemic-induced recession.

“These are the people who ultimately create jobs, entrepreneurial people,” said Mark Koestler, an immigration attorney at Kramer Levin. “In a time when our economy needs to recover and needs a boost, we’re cutting out an important part of the workforce that will really help the recovery,”

“These are C suite people and to keep out a president of a company that employs hundreds if not thousands of U.S. citizens makes zero sense,” he added.

The critics say the types of workers who will be frozen out by the order — those with specialized skills, foreign executives and seasonal workers who work in industries such as landscaping, housekeeping and construction — are in jobs that won’t be easily filled by American workers.

Andrew Greenfield, a partner at the immigration law firm Fragomen, Del Rey, Bernsen & Loewy, said his clients, which include large tech companies, are still struggling to find university-educated professionals to fill jobs, despite the 13.3 percent unemployment rate notched in May.

“Notwithstanding some of the economic devastation that we’re facing with high unemployment,” Greenfield said, “they’re not seeing the technical professional-level workforce impacted the same way.”

The unemployment rate in parts of the tech industry is far below the national jobless rate, according to some statistics, indicating a tight job market.

An analysis by the nonpartisan National Foundation for American Policy found that the share of some unemployed tech workers has actually declined during the pandemic.

Workers in computer occupations saw a 2.5 percent unemployment rate last month, a decline from 3 percent in January, NFAP’s analysis of data from the Bureau of Labor Statistics found.

But in total, the BLS estimates 21 million Americans were unemployed in May, a figure the Trump administration and its anti-immigration allies have seized on to justify the additional restrictions.

One such group, NumbersUSA, contends American employers could use the executive order to “broaden their recruitment efforts into historically underserved communities and prove that Americans will do those jobs.”

Business groups fear ramifications beyond just filling jobs. They say the freeze could decrease America’s competitiveness, because the restrictions on L visas mean foreign-based companies will no longer be able to easily send their executives to the U.S. when those companies invest here.

“American companies, American executives are all over the world, and we would not want to see reciprocal action that would prevent an American executive from running the division in a foreign country,” said Robyn Boerstling of the National Association of Manufacturers.

“From our vantage point, it is really tying the hands of employers and those of those who support job creation,” she said of the order. “We want talented individuals to come to our country, and we want to have a competitive advantage in the United States.”

The order only applies to those seeking visas from outside the United States. So applicants who were still waiting for approval when the order went into effect Wednesday morning will be out of luck unless they are already in the United States, attorneys say.

“If you weren’t in the United States as of June 24 or already had a visa as of June 24, you’re banned from getting that visa and coming into the United States by the end of the year,” Greenfield explained.

However, Daniel Costa, director of immigration law and policy research at the Economic Policy Institute, notes that a high rate of H-1B visas were issued to individuals already in the U.S. in 2019. He suggests that program may see less of a reduction under the order, because of that trend.

This blog originally appeared at Politico on June 25, 2020. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter. Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.


Share this post

Trump expected to extend limits on foreign workers

Share this post

The executive order, blocking most people from getting permanent residency, will stretch restrictions through the end of the year.

President Donald Trump is expected to extend through the end of the year foreign-worker restrictions that were initially enacted in April because of the coronavirus pandemic, according to two people familiar with the discussions.

Trump will expand on the executive order blocking most people from receiving a permanent residency visa, or green card, by including most guest workers who come to the United States for temporary or seasonal work. That will encompass skilled workers in specialty occupations, executives, and seasonal workers who work in industries such as landscaping, housekeeping and construction, according to the two people, as well as a Department of Homeland Security official. Agricultural workers and students will not be included.

The new order is expected to continue to have broad exemptions, including for health care professionals and those entering for law enforcement or national security reasons, which will be expanded to include those with economic interests. New exemptions will probably include au pairs.

We’re going to be announcing something tomorrow or the next day on the visas,” Trump told Fox News on Saturday. “You need them for big businesses where they have certain people that have been coming in for a long time, but very little exclusion and they’re pretty tight.”

The end-of-the-year extension makes it likely that the president will try to make immigration a focus of his reelection campaign, just like in 2016, when Trump promised to build a wall on the southern border and deport millions of migrants who arrived in the country illegally. In his inaugural address, Trump promised to build with American labor. “We will follow two simple rules: buy American and hire American,” he said.

Conservatives and hard-line immigration groups had been urging Trump to do more for months, contending that the initial order didn’t go far enough because of the skyrocketing unemployment rate and an election only months away. Four Republican senators — Tom Cotton of Arkansas, Ted Cruz of Texas, Charles Grassley of Iowa and Josh Hawley of Missouri — sent a letter to the president asking for a pause in guest worker visas for 60 days to a year, “or until unemployment has returned to normal levels.” Six House members, including the chairman of the House Freedom Caucus, Rep. Andy Biggs (R-Ariz.), followed with their own letter.

Trump’s first executive order, signed in April, is due to expire on Monday. It’s unclear whether he will sign one or two additional orders. The White House did not respond to requests for comment on Sunday.

The new executive order will probably anger business leaders who insist that foreign workers are still needed, even with so many Americans out of work, in order to keep vital industries staffed.

As the coronavirus outbreak initially spread, the Trump administration quietly continued to allow foreign workers to enter the country, even easing requirements for immigrants to get certain jobs — allowing electronic signatures, waiving the physical inspection of documents and extending deadlines. Then Trump abruptly tweeted that he would stop all immigration into the U.S. as the unemployment rate soared to nearly 15 percent. But the next day he agreed to scale it back.

Trump has already restricted foreign visitors from China, Europe, Brazil, Canada and Mexico, and paused most routine visa processing and refugee cases — meaning the new actions may not have been necessary. 

This blog originally appeared at Politico on June 21, 2020. Reprinted with permission.

About the Author: Anita Kumar serves as White House correspondent and associate editor, covering President Donald Trump and helping organize and guide coverage for POLITICO’s White House team. Kumar joined POLITICO in 2019 after covering the White House for McClatchy’s chain of newspapers for six years. She reported on Hillary Clinton’s campaign for president in 2016 and Barack Obama’s re-election campaign in 2012.


Share this post

Follow this Blog

Subscribe via RSS Subscribe via RSS

Or, enter your address to follow via email:

Recent Posts

Forbes Best of the Web, Summer 2004
A Forbes "Best of the Web" Blog

Archives

  • Tracking image for JustAnswer widget
  • Find an Employment Lawyer

  • Support Workplace Fairness

 
 

Find an Employment Attorney

The Workplace Fairness Attorney Directory features lawyers from across the United States who primarily represent workers in employment cases. Please note that Workplace Fairness does not operate a lawyer referral service and does not provide legal advice, and that Workplace Fairness is not responsible for any advice that you receive from anyone, attorney or non-attorney, you may contact from this site.