Of Policies, Procedures, and Packing Sheds: Agricultural Incidents of Employer Abuse of the H-2B Nonagricultural Guestworker Visa
The Journal of Gender, Race & Justice - Nbr. 10-1, October 2006
Jacob Wedemeyer - J.D. candidate, The University of Iowa College of Law, 2007
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I. Introduction II. The Regulatory And Statutory Background Of The H-2B And H-2A Temporary Worker Visas A. The Labor Certification Process for H-2A and H-2B Visa Applications 1. The H-2A Labor Certification Procedures: 20 C.F.R. § 655, Subpart B 2. The H-2B Labor Certification Procedures: 20 C.F.R. § 655, Subparts A & C a. The General H-2B Labor Certification Process: Subpart A b. The H-2B Labor Certification Process for Logging Employment: Subpart C B. Department of Labor´s Proposed Employer Attestation Procedures for H-2B Workers Would Replace Labor Certification: Proposed 20 C.F.R. § 655, Subpart A C. USCIS Proposed H-2B Visa Procedures D. New Guestworker Proposals and Recent Legislation E. Description of the Problem: Labor Certification Abuse in General and in Agriculture Specifically F. Applicable Principles of Administrative Law: Judicial Review of Agency Interpretations G. H-2B Cases: Martinez, Daylily Farms, Dattner Architects, and Sterling Onions III. Legal And Policy Arguments In Favor Of More Protective H-2B Labor Certification Procedures A. Legal Arguments for More Protective H-2B Labor Certification Procedures 1. Regulatory Interpretation: H-2B "[P]olicies" in Subpart A Means H-2A "Procedures" in Subpart B 2. Statutory and Regulatory Interpretation: H-2A "Agricultural Labor" Should Include More H-2B Workers B. Policy Arguments for More Protective H-2B Procedures 1. Employers Should Be Deterred from Hiring Temporary Foreign Workers Because Low-Skilled U.S. Labor Shortages Are a Myth 2. The DOL and USCIS Should Abandon the Proposed H-2B Employer Attestations Because Labor Certification Better Protects U.S. and Foreign Workers IV. Solutions: Legal Reform And Labor Solidarity A. H-2B Labor Certifications Should Follow Improved H-2A Procedures B. The U.S. Labor Movement Must Unite Workers Regardless of Immigration or Citizenship Status V. Conclusion
Of Policies, Procedures, and Packing Sheds: Agricultural Incidents of Employer Abuse of the H-2B Nonagricultural Guestworker Visa
Jacob Wedemeyer, J.D. candidate, The University of Iowa College of Law, 2007. Special thanks to Alejandra, Jacobo, and our family. Thanks also to the editors and staff at the Journal; the attorneys, staff, and clients at Texas RioGrande Legal Aid; and the The University of Iowa for seven great years.
I. Introduction "The term ´guestworker´ is misleading: ´Welcome to my house, now do the dishes.´"1 The H-2 visa is the current temporary guestworker program for low- skilled laborers in the United States. The H-2A visa covers agricultural workers,2 while the H-2B visa covers all other low-skilled workers.3 While scholars have written extensively about the H-2A program,4 surprisingly little scholarship has been devoted to the H-2B visa5 despite the fact that the U.S. Citizenship and Immigration Services (USCIS) annually issues five times more H-2B visas than H-2A visas.6 This Note analyzes the disparities between the H-2A and H-2B visas, critiques the current administration of the H-2B labor certification from legal and policy standpoints, and suggests ways for Congress and the Department of Labor to improve the H-2 program in order to provide more protections for U.S. and foreign workers. In particular, this Note asserts that the Department of Labor should administer the H-2B program with the same benefits and protections as the H-2A program. This Note also highlights two shortcomings of the H-2B program: its use in agriculture to circumvent the protections and benefits of the H-2A program; and its use in areas of high U.S. unemployment, like the Rio Grande Valley of South Texas. Section II of this Note briefly explores the history of the H-2A and H- 2B programs and provides a statistical overview. This section details the current statutory and regulatory framework, examines recent developments and proposals, and discusses relevant cases. Section III of this Note proposes two legal and two policy arguments in favor of more protective H-2B procedures for U.S. and foreign workers. First, the H-2B regulations incorporate by reference the more protective H-2A procedures. Second, many H-2B job titles actually entail agricultural work and should be covered by the H-2A program. Third, because low-skilled U.S. labor shortages are questionable, the H-2B procedures should require greater U.S. worker recruitment at higher wage levels, which would then be paid to foreign workers if no U.S. workers responded. Fourth, proposed agency regulations to change the H-2B program would weaken U.S. and foreign worker protections. Section IV proposes two solutions: eight governmental improvements to the H-2A and H-2B programs and international solidarity. II. The Regulatory And Statutory Background Of The H-2B And H-2A Temporary Worker Visas The H-2B temporary worker visa originated along with the Bracero Program, which brought temporary Mexican workers to the United States in 1943 to work in agriculture during the emergency labor shortages of World War II.7 Congress and the Immigration and Nationality Service ("INS")8extended the Bracero Program several times until 1964 despite the end of World War II two decades earlier.9 The Immigration and Nationality Act of 1952 codified the H-2 temporary work visa,10 which was first created in 1943 like the Bracero program.11 During the twelve-year period when the Bracero program and the H-2 visa officially overlapped, Mexicans did not qualify for H-2 visas.12 In 1986, Congress divided the H-2 visa into two subcategories: the H-2A (agricultural) and H-2B (nonagricultural) visas.13Now Congress and the Bush Administration are considering the creation of another Bracero-like guestworker program.14 The H-2A and H-2B visas will likely be directly affected. To qualify for H-2A and H-2B temporary work visas, sponsoring employers must obtain labor certification from the Department of Labor (DOL).15 Labor certification implements Congress´s intent that both the importation16 of foreign workers should only occur during a bona fide labor shortage and that the importation will not harm U.S. workers.17 In other words, labor certification is a test of the domestic labor market. Labor certification requires that no U.S. workers are available18 and that wages and working conditions of U.S. workers will not be adversely affected by the hiring of the foreign workers.19 Once the DOL grants labor certification, the employer applies to the USCIS for the H-2 visas.20 The H-2A visa has no numerical cap, but the statutory cap for H-2B visas is 66,000.21 In 2003, USCIS actually issued 14,094 H-2A visas and 102,833 H-2B visas.22 In 2004, USCIS issued 22,141 H-2A visas and 86,958 H-2B visas.23 ...
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