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The H-2B temporary
foreign worker program allows employers to hire workers from other
countries on temporary work permits to fill nonagricultural jobs
that last less than one year. The work must be temporary,
intermittent, peak load, or one-time only work. An employer can
only hire H-2B workers when no qualified United States
workers are available. H-2B workers are commonly found in the
landscaping, forestry, seafood processing, and hospitality
industries.
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.
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.
Latest News
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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Click here for the legislative language of the Increasing
American Wages and Benefits Act, S. 2094.
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Click here to read a summary of the Increasing American Wages
and Benefits Act, S. 2094.
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Click here to read a fact sheet on the Increasing American Wages
and benefits Act: Legislation to Reform the H-2B Guest-Worker
Program.
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Click here for Farmworker Justice’s letter in support of the
Increasing American Wages and Benefits Act, S. 2094.
Status
of H-2B Legislation
Currently, a legislative effort is underway to increase the cap on
H-2B workers. In the context of this legislative push, Farmworker
Justice and other labor and immigrant rights groups are advocating
for an increase in worker protections.
On October 16, 2007, the Senate passed by unanimous consent an
amendment to the Commerce, Justice, Science (CJS) spending bill, HR
3093, offered by Sen. Mikulski (D-MD). The amendment is based on
Sen. Mikulski’s Save Our Small and Seasonal Businesses Act of 2007,
S. 988. It would expand the H-2B program by exempting from the
program cap H-2B workers who had been present in the US as H-2B
workers in any one of the three previous fiscal years. Farmworker
Justice is disappointed that the protections from Sen. Sanders bill
were not adopted. On a positive note, however, an amendment by Sen.
Bingaman (D-NM) that would allow H-2B forestry workers to be
eligible for representation by the Legal Services Corporation was
also adopted by unanimous consent.
The Senate passed the CJS spending bill the same night. Now the
Senate version of the bill must be reconciled with the House version
in conference committee.
Further information
about the H-2B Program:
Congressional
Hearings and Briefings on H-2B Forestry Workers
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.
Other Links
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
click here.
The webpage also has
a booklet 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.
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) (link
to word document).
H-2B Regulations:
20
C.F.R. § 655.1-655.4; 8 C.F.R. 214.2 (h)(6) (link
to word document).
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