By Caroline Kelley
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.
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.
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.