By Caroline Kelley
Since November 9, 2016, citizens of the United States, Mexico, and the world have wondered who will advocate for their rights in the new geopolitical landscape. They have fearfully ruminated on the breadth of executive power, and have reached out to allies in the hope that collective actions will have greater effect than individual ones. There are some groups of citizens, however, who—while threatened by the policies and conflicts of interests of the new administration—have never enjoyed a robust framework for the protection of their rights. One such group is seasonal workers who migrate from Mexico to the United States to work under the H-2A and H-2B visa programs.
The H-2 visa programs are established by the Immigration and Nationality Act, and are governed by regulations issued by the Department of Labor, the Department of Homeland Security, and the State Department. The DOL’s regulations, which concern the issuance of temporary certifications allowing American businesses to apply for visas, contain most of the worker protections afforded by the H-2 process. The regulations include a requirement that US employers contractually forbid any recruiters they use from charging fees to workers seeking H-2 employment. This provision represents an attempt to control the largely unregulated process of recruitment under the H-2 programs, which neither sending nations nor the United States has taken significant steps to control. Mexicans attempting to enter the US to work under the H-2 program are vulnerable throughout the recruitment process, when they are likely to encounter actors who will lie to them about the work that is available abroad, charge them exorbitant fees, or otherwise take advantage of their strong desire to find employment.
When I was first introduced to the H-2 programs, during my winter co-op job at the Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC), located in Mexico City, I felt hopeful that Donald Trump’s destructive policies would bypass them altogether. He had not denounced the H-2 programs as he had the H-1 visa program, and it was not a topic which, like immigration, was discussed on his website and in speeches. Furthermore, Donald Trump is an H-2 program employer through his hotels and other business ventures. He also briefly hired an H-2 recruiter to his DOL transition team, a woman who has suggested that the H-2 programs support small businesses, legal immigration, and American jobs. Initially, these facts indicated to me that the H-2 program was not in danger from a Trump presidency.
However, as I began to dig deeper, I found that H-2 workers were even more exposed than I realized, due to the nature of the visa program and the likelihood of executive inaction over the next four years. Though the program was created by statute, and therefore cannot be completely eliminated without congressional approval, its form and function are established entirely by regulation. This means that the President and the heads of his executive departments, if acting in concert, could strong-arm their way to a new regulatory scheme by promulgating rules that cut back on H-2 worker protections. Congress would be able to issue joint resolutions of disapproval against such regulations, if there was sufficient consensus to do so, but the President could veto those resolutions. Overall, the extent of the President’s power over regulations, paired with the conflicts of interests present in having an H-2 employer in the White House, paint a troubling picture for H-2 regulation over the next four years.
Even if the structure of the H-2 programs is not changed during this term, relaxed enforcement of the few worker protections found in H-2 regulations could be devastating. Mexican workers who are exploited during the recruitment process may not be able to successfully recover fees in their home country due to flaws in its justice system, and even if they are able to procure a judgment, it will likely extend only to the Mexican recruiter, who may be judgment-proof. Establishing the liability of a US employer for illegal fees can be even more difficult. The DOL’s regulations do not contain a private right of action, which means that workers must rely on the agency to enforce them. To recover fees themselves, workers must rely on alternate sources of law, such as the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act, or contract. Each poses unique obstacles, and taking any legal action in a foreign country can be difficult. Workers often fear that if they speak up, they will be fired, or their visas will not be renewed, even though H-2 regulations technically prohibit retaliation.
Coming to understand the challenges H-2 workers face in their attempts to access justice for themselves and their fellows has inspired me to think more critically and holistically about a client group’s situation. ProDESC, having identified these challenges, has begun to partner with U.S.-based legal services and public interest organizations to pursue test cases concerning recruitment abuses in the H-2 context. In order to truly make the H-2 program safer for workers, organizations on both sides of the border must partner to educate workers about their rights, to identify illegal activity, and to pursue legal action whenever possible. Lobbying for a private right of action under the H-2 program would also make a difference, if successful. It has been a great pleasure for me to work with talented Mexican and U.S. attorneys over the last three months, and I believe that the H-2 context is only one of many which would benefit from increased legal partnership between our two inextricably linked nations.
Caroline Kelley is a third-year student at Northeastern School of Law. During the Winter 2017 quarter, she worked with Proyecto DESC in Mexico City through Northeastern’s Cooperative Education Program.