The good news is that the Biden’s Department of Homeland Security is investigating employers, not raiding workplaces.
By Herbert Rothschild
The immigration that looms large our public discourse is illegal immigration. Little known and rarely discussed are the U.S. Department of Labor’s (DOL) legal immigration programs. There are grave abuses in them, but because the perpetrators and beneficiaries of those abuses are employers, politicians can’t get mileage from exposing them.
The two largest programs are H-2A, the Temporary Agricultural Program, which allows employers to bring foreign workers to the U.S. to work on farms, and H-2B, which allows employers to bring in foreign workers for jobs in other sectors of the economy. The H-2A workers are typically poor and uneducated; the H-2B workers are typically highly educated and skilled. Both groups get exploited, though the former more grievously.
In November 2021, the U.S. Department of Justice announced the culmination of Operation Blooming Onion, a three-year investigation into a ring that used the H-2A program to import workers from Mexico, Guatemala and Honduras and job them out to farmers, mainly in southern Georgia, who held them in conditions approaching slavery. The 24 people indicted were alleged to have made some $200 million from the scheme, which began in about 2014.
The indictments said the conspirators required the workers to pay unlawful fees for transportation, food, and housing while illegally withholding their travel and identification documents. They had to dig onions with their bare hands, were paid 20 cents for each bucket harvested, and threatened with guns and violence to keep them in line. They were held in cramped, unsanitary quarters and fenced work camps with little or no food, limited plumbing and without safe water. The conspirators were accused of raping, kidnapping and threatening or attempting to kill some of the workers or their families, and in many cases sold or traded the workers to other conspirators. At least two of the workers died as a result of workplace conditions. The raids freed about 100 workers then being held in those conditions.
The statute that created the H-2A program and the DOL’s regulations all mandate protections for the workers granted H-2A visas. The problem is enforcement. In a report on NBC News about Operation Blooming Onion, Charles Kuck, an immigration attorney in Georgia who has worked on H-2A cases and investigations, was quoted as saying that the raid and indictment are both “unusual, [whereas] we know that the conditions for workers that they described are not unusual. This is just people getting caught.” Historically, enforcement of immigration laws has focused on finding and deporting undocumented immigrants, not protecting foreign workers here either legally or illegally.
Encouragingly, we learned from the reporting about Operation Blooming Onion that, on Oct. 12, 2021, Homeland Security Secretary Alejandro Mayorkas issued a memo directing immigration authorities to end the massive worksite raids that were used as an enforcement tactic under President Donald Trump and instead focus on “exploitative employers” who take advantage of the temporary worker visa programs.
In his memo Mayorkas wrote, “we must adopt immigration enforcement policies to facilitate the important work of the Department of Labor and other government agencies to enforce wage protections, workplace safety, labor rights, and other laws and standards. We will serve these important interests by adopting policies and practices that achieve the following: Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents; Increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations.” In ways obvious and not so obvious, it does matter which party controls the White House.
But I know of no parallel developments when it comes to the H-2B program. Administrations of both parties have largely given employers free rein to use the program to hire foreign workers at lower pay than if they had hired U.S. workers.
In order to issue an H-2B certification to an employer, the DOL must determine that there aren’t sufficient workers qualified and available to perform the work for which the employer wants to hire foreign workers. Further, the employer must pay them a wage equal to, or higher than, the prevailing wage for the same job in the employer’s location.
The AFL-CIO’s Department of Professional Workers has complained that it’s almost impossible to ascertain how many visas have been issued under this program — the Economic Policy Institute (EPI) estimated 337,000+ in 2019 — and whether the employers adequately demonstrate that they can’t find qualified U.S. workers to fill the positions.
It also complained that the wage standards for the H-2B visa are so low that there is a significant cost incentive for employers to displace U.S. professionals. The employer can pay one of four levels based in part on the job requirements, which is determined by the employer, not the DOL. Analysis from EPI and Howard University Professor Ron Hira revealed that, in FY2019, 60 percent of H-2B positions were paid at the lowest two levels, below the median wage for the given occupation and location. All types of companies, including big-name tech firms, take advantage of these low wage requirements. For example, Amazon and Microsoft each had three-fourths or more of their H-2B positions assigned as Level 1 or Level 2 and Google had more than one-half assigned as Level 2.
The DOL has cited numerous obstacles to its ability to protect H-2B workers, including lack of authority to initiate investigations, inability to access the Labor Condition Application database, inadequate fines for employer noncompliance with a DOL investigation, and lack of subpoena authority to obtain employer records.
I’m confident that most employers treat their workers fairly. Under our current economic system, however, it’s reasonable to assume that employers, especially if their managers serve external stockholders, will take advantage of workers whenever they can get away with it. If that were the working assumption of our enforcement agencies, they would get away with it less often.
Herbert Rothschild is an unpaid Ashland.news board member. Opinions expressed in columns represent the author’s views and may or may not reflect those of Ashland.news. Email Rothschild at [email protected].
