FJ Blog

Friday, 29 January 2016

This week NPR aired a story "Guest Workers, Legal Yet Not Quite Free, Pick Florida's Oranges” that featured an H-2A worker, otherwise known as an agricultural guestworker.

In an interview at the beginning of the program, a grower of Florida citrus said that his farm started using H-2A workers to avoid competing for workers who were asking for a higher wage. The farm didn’t want to pay an extra nickel a box that farmworkers asked for and that a competing grower was offering. This frank statement reveals the fundamental problems with the temporary foreign worker program.

The guestworkers don’t ask for wage increases.  Why?  Because as the story reveals, guestworkers don’t have the freedoms that we take for granted in this country.
 
H-2A guestworkers may only work for the one employer that obtained a visa for them.  When the job ends, they must return to their homeland.  If they want to return to the US, they must hope that the employer will invite them back and apply for a visa.  The workers have no independent ability to apply to the US government for an H-2A visa.  Technically, they hold a “non-immigrant” status.  And the law refers to these human beings as being “imported” by employers.  As if they are commodities.
 
In this restricted, temporary status, the workers will not usually challenge unfair or illegal conduct, or even ask for a raise.  They feel lucky to have the job.  And why not?  Usually, the wage is a lot higher than they would make in their own country.  So they will often work to the limits of human endurance.  Growers will say how “reliable” they are, but what is really going on in many cases is that these workers are under such pressure that they are extraordinarily productive. 
 
The story discusses the issue of who is better (or worse) off, a guestworker or an undocumented immigrant worker.  That’s a time-honored debate.  The guestworkers are taken advantage of and so are undocumented workers, but the undocumented workers are, in a sense, free.  They can change jobs, though that is often difficult. 
 
The story does a good job of demonstrating the lack of economic freedom in guestworker programs.  There is also a fundamental lack of political freedom.  No matter how many years the guestworkers are brought back to the U.S., they never earn the right to become an immigrant or a citizen.  Guestworkers don’t vote.  But the employers vote.  And the employers give campaign contributions.  And the employers lobby Congress and the Administration to lower the required wage rates and other obligations under the H-2A program.
 
The H-2A program is supposed to prevent employers from undermining the wages and working conditions of U.S. farmworkers’ job terms.  But the law and regulations generally don’t work.  The lack of economic and political bargaining power on the part of the guestworkers is just too much to overcome.
 
We are a nation of immigrants, not a nation of guestworkers.  The workers we need in this country – and we need farmworkers – should be given the opportunity to be immigrants and citizens.  Because the majority of farmworkers are undocumented immigrants, Congress should pass immigration reform that creates such opportunities and grants farmworkers the economic and political freedoms on which this country was founded.
 

by Bruce Goldstein, President Farmworker Justice
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Friday, 15 January 2016

Raids
Unfortunately, the Department of Homeland Security brought in the new year with a campaign to aggressively round up immigrants from Central America- who are primarily women and children - for deportation. The Department of Homeland Security and President Obama have come under sharp attack for the raids. The aggressive raids may re-traumatize families who may have been victims of violence in their home countries or during their journey to the United States.

When President Obama announced his executive actions on immigration, he said that he would be deporting “felons not families.” Yet, this operation targets a vulnerable population of women and children. While the targets of the raids may technically fall into DHS’s new enforcement priorities—those that received final orders of deportation issued on or after January 1, 2014—targeting this population is wrong. These families are fleeing some of the most violent countries in the world.

It’s also important to note that these families did not enter the country illegally. They presented themselves at the border seeking asylum, as is their right under the law. Some targets of the raids didn’t have access to counsel and therefore lacked a meaningful opportunity to seek asylum. The families of some of those detained have reported that their loved ones did not know that they had a deportation order. The immigration system is complicated and without counsel many of the refugees may not have even understood that they were required to appear in court. Missing a court date often automatically results in a deportation order. Other immigrants may have had inadequate legal representation. At least 33 people arrested in the raids have received a stay of removal from a judge, in part for claims of ineffective assistance of counsel.

The Guardian confirmed several instances in which Central Americans have been killed soon after being deported home, and reports that there may be more. The Central American refugees are fleeing real danger in their home countries of Honduras, Guatemala and El Salvador. Many organizations are asking the U.S. government to offer temporary protected status to individuals from these countries until conditions in those countries improve. The United Nations will begin screening people for refugee status in the three Central American countries

The raids are causing fear and harm among people in immigrant communities and should be stopped. Information on know-your-rights and how to report a raid are available on NILC’s website

DAPA: Executive Action on Immigration 

The Supreme Court is convening Friday to review cases that are seeking certiorari (a request for review) at the Supreme Court. We are cautiously optimistic that the Court will decide to hear Texas v. US, the case that suspended implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded DACA programs. For the case to be heard, four out of the nine justices must agree that they want to hear the case. We are hopeful that the case will be heard and scheduled for briefing and a hearing this April, and result in a decision by the end of June. Though the outcome is uncertain, we are also hopeful that the Supreme Court will decide in favor of the Federal Government and allow DAPA and DACA plus to be implemented. Chief Justice Roberts and Justice Kennedy are likely to be the swing votes in the case. 

Immigrants’ rights groups have kicked off a week of action urging the Supreme Court to take up the case. Many amicus briefs by different groups are being organized in support of the deferred action programs. Farmworker Justice plans to sign on on to one of the briefs as it did when the case was heard at the Fifth Circuit Court of Appeals. 

Farmworker Justice continues to prepare for implementation of DAPA and expanded DACA through active work in the Coalition for Immigration Reform Implementation (CIRI) and the Si Se Puede network. You can register for CIRI’s Ready America conference to prepare for implementation to be held on February 3-5th here. A limited number of scholarships are available for the conference. 

The H-2A Program
An employer association and large H-2A employer, WAFLA (formerly known as the Washington Farm Labor Association), is under investigation by the Washington Attorney General’s office for its efforts to direct employers on how to answer the Washington State prevailing wage/working conditions survey. WAFLA is the second largest employer of H-2A workers in FY2015, having received labor certification for 7,895 H-2A workers, and also advises employers on how to use the H-2A program. WAFLA has recently expanded its operations beyond Washington to Oregon, California and Michigan. The survey is used to establish the prevailing wage rate, one of several enumerated wage rates in the H-2A program (employers must pay the higher of the federal or state minimum wage, the Adverse Effect Wage Rate, or the local prevailing wage, which may be an hourly wage or a piece rate) and certain other job terms in employers’ applications for H-2A temporary agricultural workers.

In September, WAFLA held webinars and posted videos and documents directing employers to put specific answers that would adversely affect wages and working conditions on the prevailing wages and working conditions survey. The Washington State employment agency (ESD) made preliminary findings that WAFLA’s instructions biased survey results. Farmworkers Justice has been assisting advocacy groups in Washington, led by Columbia Legal Services, and including the Northwest Justice Project, the Washington State Labor Council, and the National Employment Law Project. In addition to advocacy in Washington State where the Attorney General’s office has an investigation underway, the organizations sent a letter to the Department of Labor requesting an investigation to ensure that accurate prevailing wages and working conditions for this season are set. This situation clearly illustrates that in order to get accurate wage and practices information, workers must be surveyed as well as employers. 

Finally, in case you missed it, Buzzfeed published an article over the holidays called the Coyote. The article details Stan Eury’s abuse of the H-2 programs for his personal gain, resulting in a criminal sentence that includes prison time.  

by Megan Horn
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Thursday, 17 December 2015

Congress has come to a bipartisan agreement on a spending bill to fund the government for the rest of FY2016 and a tax bill that makes permanent some tax breaks for individuals and corporations. Farmworker Justice is extremely disappointed that the appropriations bill contains harmful policy “riders” that will prohibit the Department of Labor from using funds to implement important worker protections in the H-2B non-agricultural temporary foreign worker program. One result will likely be to lower wages for H-2B guestworkers and US workers that work alongside them.

The H-2B program riders will affect forestry workers (who are brought in under the H-2B program but are considered agricultural workers under other laws) as well as landscaping, food processing, hospitality and construction workers. In addition to changing the wage formula, which will likely lower wages in most instances, the riders will prevent DOL from requiring additional recruitment of US workers based on labor market history and from auditing employers’ recruitments. The riders also strip protections for US workers in “corresponding employment” so that very few US workers will be entitled to the same wages and working conditions as H-2B workers that they work alongside. The bill defunds the ¾ minimum-work guarantee, which requires employers to pay H-2B workers for at least 75% of the hours they are promised over a 12 week period. This rule aims to curb the practice of hiring excess H-2B guestworkers and then offering them little to no hours. The bill also effectively enlarges the program by exempting H-2B workers who came in FY2013, FY2014 and FY2015 from being counted toward the annual cap on the number of H-2B visas.

Farmworker Justice opposes expansion of guestworker programs outside the context of comprehensive immigration reform and opposes the removal of labor protections in the H-2B program, which is rife with abuse. Placing these substantive immigration and labor changes into must-pass appropriations bills in order to avoid the legislative process and input from workers, their advocates and the public is shameful.

Farmworker Justice worked through the International Labor Recruitment Working Group Advocacy Committee to oppose these harmful provisions. We thank Senators Richard Blumenthal (D-CT), Bernie Sanders (D-VT), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Jeff Merkley (D-OR), Mazie Hirono (D-HI) and Al Franken (D-MN) who sent a letter to Senate leadership and top appropriators opposing the H-2B riders. However, it was an uphill battle with many Republicans and the top Democratic appropriator, Senator Barbara Mikulski (D-MD), championing the cause of businesses that seek to lower their labor costs and hire vulnerable guestworkers. The ILRWG also sent an organizational sign-on letter in opposition to the riders and released this statement on the appropriations bill. Our previous blog on the H-2B proposals describes the House and Senate bills that would further and permanently strip protections in the H-2B program.
While the tax bill makes permanent important tax credits for families (along with some corporate credits) and postpones the “Cadillac tax,” a tax on expensive health care plans (a priority for some unions with generous health care plans that were bargained for in lieu of higher wages or other benefits), it also contains some harmful provisions that will negatively affect some immigrant and mixed status families.

Both bills are expected to pass and be signed by the President before Congress goes on recess for the holidays. The appropriations deal will avoid a government shutdown. The appropriations bill is expected to rely heavily on Democrats voting in favor of it to pass, which gave them significant leverage in the negotiations process.

As Daniel Costa’s Economic Policy Institute blog explains, there is no evidence of a labor shortage in the industries that use the H-2B program. Even if there were such evidence, there is no valid justification for lowering wages, stripping protections from vulnerable workers, and facilitating hiring vulnerable guestworkers under substandard conditions. Congress should be focused on creating a path to immigration status and citizenship for undocumented workers and opportunities for better job terms for workers in these industries. Foreign workers should not be treated as commodities. When foreign workers are needed, they should be treated with dignity and offered strong labor protections and the opportunity to obtain greencards. We are a nation of immigrants not a nation of guestworkers.

As a final note, if you haven’t already, you should read the Buzzfeed articles on the H-2 agricultural and nonagricultural temporary worker programs. The first, “The New American Slavery: invited to the US foreign workers find a nightmare” focuses on the abuses of H-2 guestworkers, while the second “All you Americans are fired” focuses on the harm caused to US workers by the program.

by Megan Horn
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