The H-2A visa program has long been touted as a way to ensure that farmers can access enough workers without hiring people who are undocumented. But for some migrant farmworkers seeking better-paying jobs in America, their seasonal gigs have morphed into a nightmare.
As a recent ProPublica story revealed, the promises of the H-2A visa program can be undermined by extreme abuses the workers suffer, mostly by labor contractors. Some workers have had their wages stolen and been threatened with deportation if they complain about unsafe work conditions, a federal investigation found. In the worst instances, others have been assaulted or raped or have even died. It’s gotten so bad that, in one of the largest H-2A criminal cases ever, a federal judge described the abuse of these workers as a form of modern-day slavery. And without further changes to the H-2A program, experts told ProPublica, foreign farmworkers may continue to be harmed.
With the U.S. facing a drastic shortage of domestic farmworkers and as the Trump administration deports more undocumented immigrants, experts told ProPublica that H-2A visas are certain to remain in high demand. One agricultural economist forecasts that, by 2030, there could be a need for up to 500,000 H-2A workers — roughly triple the number requested in 2016, the year that President Donald Trump was first elected.
Experts, lawyers and advocates told ProPublica that, unless more is done to protect workers, the instances of abuse and exploitation are likely to increase as well. They suggested a variety of ways to make the H-2A program safer and more humane.
1. Enforce the current rules better
The H-2A program is supposed to provide fair wages, safe working conditions and free housing and transportation to workers. But experts said insufficient oversight has undermined the protections promised to visa holders.
“The expectations are very clear,” said Cesar Escalante, a University of Georgia professor of agricultural and applied economics. “Even if we’re very clear on the regulations, the government has failed on the enforcement.”
The U.S. Department of Labor each year investigates only a tiny fraction of farm employers. The number of investigations is scarce not because of a lack of potential violations. A report from the Government Accountability Office showed that 84% of the investigations conducted by federal regulators found at least one violation of rules designed to protect H-2A workers. Advocates see that high violation rate as an indication that regulators are missing even more abuses in the fields.
Labor experts believe that the limited enforcement is largely due to limited resources. One of the main enforcers of H-2A rules, the Labor Department’s Wage and Hour Division, last year had one of the lowest levels of investigators since the H-2A program was launched in the 1980s, Rutgers University researchers found. Daniel Costa, an attorney and director of immigration with the think tank the Economic Policy Institute, has called on Congress to boost the division’s funding to allow its regulators to conduct more proactive investigations. Short of that, Costa warned, the H-2A program will continue to be a “breeding ground for abuses.”
If the Trump administration’s proposed budget gets approved, it will make even further cuts to the Wage and Hour Division. That could mean fewer H-2A investigations moving forward.
A Labor Department spokesperson did not respond to ProPublica’s request for comment about its enforcement practices and the implications of the budget proposal.
2. Raise the stakes for farmers
There have been calls not just to hold farmers more accountable for H-2A violations, but also to reward the ones who comply with labor laws.
Advocacy groups like Centro de los Derechos del Migrante and United Farm Workers have called on farmers to be held liable for the illegal practices of the third-party recruiters they hire. Right now, there’s a bill proposed by a bipartisan group of lawmakers that would require farmers to stop working with recruiters who charged laborers an illegal fee to obtain an H-2A visa. And it would give regulators the ability to fine farmers for failing to do so.
Since only a tiny fraction of employers who hire H-2A workers face severe consequences, human rights organizations also have urged regulators to suspend or ban more employers from the H-2A program. They say that’s particularly important for employers with a track record of violating workers’ rights.
Philip Martin, a professor of agricultural and resource economics at the University of California, Davis, believes that farmers should be rewarded for following the rules. He said the largest employers of H-2A workers generally are not the ones responsible for the worst violations. He thinks that regulators should create a TSA PreCheck-style program that would let law-abiding employers move through the process of getting approved for H-2A workers more quickly with fewer bureaucratic hurdles. And it could allow overworked regulators to focus on the most pressing problems.
3. Get corporations on board with stopping abuse
There’s a growing movement centered on the idea that the power of consumers can be leveraged to end agricultural abuses.
After years of demanding better pay and protections from individual farmers and buyers, the Coalition of Immokalee Workers — the anti-trafficking organization that uncovered the first examples of abuse in the massive federal case — launched the Fair Food Program in 2010. Under the program, corporate buyers such as supermarkets and fast-food chains sign legally binding agreements to buy ethically sourced crops.
Participating buyers agree to purchase produce from farms that adhere to the program’s stringent set of protections for workers, let workers be informed about their rights by the CIW and allow independent auditors to investigate complaints from their fields. The buyers also agree to pay those growers a small premium that is passed down to their workers. If extreme abuses like forced labor are found on those farms, the buyers commit to suspending produce orders until the issues are addressed.
Some of America’s largest supermarkets (Walmart, Whole Foods) and fast-food chains (McDonald’s, Burger King) participate in the Fair Food Program. The corporations’ participation was originally limited to a select set of crops, such as tomatoes. Some of their commitments since have grown to include more crops. Other big buyers, like Kroger, Publix and Wendy’s, have not participated in the program. Spokespeople for the companies did not respond to ProPublica’s request for comment. Buyers who have not participated in the program have stated that it is the responsibility of their suppliers to ensure that workers are treated fairly.
The Fair Food Program has protected the rights of thousands of H-2A workers each year, according to the independent auditors, but that’s still less than a tenth of the more than 300,000 H-2A workers in the U.S. According to the CIW, the more buyers and growers embrace the program, the more likely it is that abuses of H-2A workers can be prevented.
Susan Marquis, a professor with Princeton University’s School of Public and International Affairs, said the other ideas proposed by experts can help reduce the harms faced in the fields. But they don’t go as far as the Fair Food Program in stopping the kinds of violations that routinely happen in the H-2A program.
“It’s very clear, supported by the data, that nothing works to end forced labor except the Fair Food Program or some other variation of worker-driven social responsibility,” Marquis said.
