After years of legal battles, the H-2B guestworker program finally acquired official rules in April. For the first time, workers in the program were guaranteed basic protections like minimum hours and local average wages. But now those rules are being challenged in several Congressional bills. The proposed bills could dramatically alter the program, cutting protections for U.S. and foreign workers alike, and removing the Department of Labor (DOL) from its traditional oversight role.
The H-2B visa program brings foreign workers to the U.S. temporarily to fill labor shortages in low-skill, nonagricultural work. H-2B visa holders work as landscapers and carnival attendants, seafood processors and soccer coaches. A years-long standoff between program regulations issued under the Bush administration and those issued under the Obama administration appeared to come to an end earlier this year. In April, DOL and the Department of Homeland Security (DHS) jointly issued program rules very similar to the original Obama regulations. The rules afforded protections such as giving workers a contract in a language they understand, guaranteeing them at least three-fourths of the hours in the contracts and reimbursing their travel costs to and from the U.S.
Many of those protections are now being challenged in Congress — both in substantive legislation and in the murkier appropriations process.
The more immediate challenges are being staged in riders to appropriations bills. Riders are proposed additions to bills that may have nothing to do with the bills themselves. Policies may be attached to bills as riders to push them through Congress when they would not pass on their own. Most of the H-2B riders are attached to the Department of Labor, Health and Human Services Appropriations Act — a “must-pass” budget bill whose deadline is this Friday.
The proposed riders include defunding enforcement of the “three-fourths guarantee,” which ensures workers are paid for at least three-fourths of the hours in their contracts. This provision is designed to keep employers from over-recruiting workers and then benching them when hours become scarce.
“We were promised that there would be plenty of work,” says one worker in a video by migrant worker advocacy group Centro de los Derechos del Migrante (CDM). “We traveled to the U.S. with the dream of having greater financial stability, … but in the end we were not given as many hours as we had been promised.” H-2B workers often go into debt to recruiters to secure American jobs. Once in the U.S., they are not allowed to work for anyone but the employer who sponsors their visa, even if that employer can’t or won’t give them full-time work. Then they may not be able to pay back their debts, much less bring money home.
Naomi Tsu, a staff attorney at the Southern Poverty Law Center’s Immigrant Justice Project, emphasized the connection between debt and exploitation on the job. “You’d have these low-wage workers who are bearing hundreds or thousands of dollars in costs and I’m pretty concerned about how vulnerable that leaves the worker once she arrives,” she said, citing labor abuses like a human trafficking case involving H-2B workers earlier this year. “She’s got to keep working for the same employer no matter how bad things are because it’s either that or else go home to the debt.”
Another rider would change the way H-2B workers’ wages are determined so that employers could use “private wage surveys” to determine the wage the workers should be paid. This methodology, invalidated by a federal court, leads to wages significantly below those provided by the Bureau of Labor Statistics.
While rolling back worker protections, the riders would dramatically expand the visa program. That could inflame concerns about guestworkers’ competing with U.S. workers for jobs — especially if new wage rules mean employers can pay guestworkers less. As of now, H-2B visas are capped at 66,000 a year, with a few exceptions. But one rider would exempt from that cap those who had worked in the U.S. in the past three years — potentially expanding the program to over 200,000 guestworkers a year.
The Economic Policy Institute (EPI) found in 2011 that “the H-2B program puts downward pressure on American wages.” It also found high unemployment and stagnating wages in top H-2B occupations. The program is supposed to be used for domestic labor shortages, but these statistics suggest employers are using it to bypass normal labor market pressures. Concern about American workers has united some on the Right with those on the Left concerned about migrant workers — conservative outlet Breitbart, for instance, has reported disapprovingly on the H-2B program and efforts to expand it.
But those efforts also have bipartisan support. One of the most vocal champions of the program is Democratic Senator Barbara Mikulski (D-MD), who is also Vice Chairwoman of the Senate Appropriations Committee — a position of influence over the appropriations riders. Mikulski has long gone to bat for the Maryland seafood industry, which uses H-2B workers as crab-pickers, oyster-shuckers and other seafood processors. A report by CDM and American University found low wages, erratic hours and dangerous working conditions among Maryland’s H-2B crab workers, who are legally allowed to be paid below minimum wage. Another Democratic senator, Mark Warner (D-VA), signed a letter with Thom Tillis (R-NC) to Mikulski and Committee on Appropriations Chairman Thad Cochran (R-MS) asking them to keep the riders.
But some question whether the appropriations process is the right place to make immigration policy. Another group of senators, including Dick Durbin (D-IL), Elizabeth Warren (D-MA) and Bernie Sanders (D-VT), signed a dueling letter asking Cochran and Mikulski to nix the riders.
“As you know,” the letter reads, “Democratic Congressional leadership has made it clear that they will not agree to spending measures with ideological policy riders. … The appropriations process should not be used to bypass the legislative process or make substantive changes to immigration law.”
A coalition of progressive groups, from the AFL-CIO to the Sierra Club, has sent a “no riders” letter to President Obama and Congress opposing all ideological policy riders. One of the most controversial is the rider defunding Planned Parenthood, but the letter lists over a dozen others as examples. It notes that policy riders are often “measures that the public opposes, and the President would likely veto as standalone legislation.”
What will happen with any of the riders remains unclear, as the appropriations process is closed and there is still time for change. Congress could pass a continuing resolution keeping the agencies funded while delaying passing a new budget — and postponing the riders debate. If the Senate does pass an omnibus bill, however, the evidence is strong that Vice Chairwoman Mikulski supports the H-2B riders.
Senator Mikulski also co-sponsored a bill with Senators Tillis, Warner, and Bill Cassidy (R-LA) that would change H-2B regulations even more dramatically than the appropriations riders. The Save Our Small and Seasonal Businesses Act of 2015 contains some of the same provisions proposed as riders — expanding the program, changing wage calculations, eliminating the three-fourths rule — but removes even more of the worker protections included in the Obama rules. (An equivalent bill has been introduced in the House.)
Most strikingly, it would remove the DOL altogether from its traditional oversight role. Rules for the H-2B program have historically come from DOL, not from legislation. In the past few years, H-2B industry groups have begun challenging DOL’s authority to regulate the program, as DHS is responsible for immigration. To avoid the question of which agency has rulemaking authority, DOL and DHS jointly issued the latest program regulations. Industry groups have complained of bureaucratic red tape and unnecessary delays in coordinating between the two agencies.
CDM’s policy director Elizabeth Mauldin doesn’t buy that the new regulations are needed to streamline the program. “They’re using complaints about processing delays as a means to strip worker protections from the program and seek to restructure it completely,” she said. “There are much more obvious and concrete ways to solve the processing delays they’ve experienced that don’t involve moving oversight of the program from the Department of Labor to the Department of Homeland Security and stripping worker protections from the program.”