Guest worker programs offer numerous benefits to employers in the United States. However, in the United States federal guest worker programs also harbor significant potential for exploitation and abuse by unscrupulous employers, leading to the mistreatment of foreign laborers. Guest worker programs present distinct risks unique to foreign workers, and the litigation surrounding these programs contains complex issues at the intersection of employment, immigration, and international law. Despite its complexity, guest worker litigation is a necessary component in protecting the rights of foreign laborers participating in guest worker programs. Litigation can protect guest workers’ rights, expose hidden wrongdoing, and bring about lasting positive change.
What are guest worker programs?
Guest worker programs allow U.S.-based employers to hire foreign laborers to come work in the United States. These foreign laborers are often referred to as “guest workers” because they are issued work visas temporarily. These temporary visas provide guest workers with non-immigrant statuses that are tied to the guest workers’ employer, meaning guest workers are unable to leave their employment with their specific employer because they will subsequently lose their authorized right to live and work in the United States and will be deemed unauthorized.
There are two types of guest worker programs available in the United States: the H-2A Program and the H-2B Program. The H-2A Program allows U.S. employers to bring foreign workers to the United States to fill temporary or seasonal agricultural jobs,[1] while the H-2B Program allows U.S. employers to bring foreign workers to fill temporary non-agricultural jobs.[2] Employers in industries such as landscaping, forestry, seafood processing, and hospitality and tourism commonly utilize guest workers under the H-2B Program to supply their workforce.
In order to utilize either guest worker program, an employer must first establish that there are not enough U.S. workers who are available and qualified to do the temporary work, that the guest worker will not adversely affect the wages and working conditions of similarly employed U.S. workers, and that the guest workers’ labor is strictly temporary. Further, employers need to 1) apply for and receive a temporary labor certification with the U.S. Department of Labor and 2) submit and file a Form I-129 with the United States Citizenship and Immigration Services (USCIS) agency. Once the USCIS approves Form I-129, prospective guest workers who are outside of the country can apply for either the H-2A or H-2B visa with the U.S. Department of State at the U.S. Embassy or Consulate abroad, and/or can directly seek admission to the United States with the U.S. Customs and Border Protection agency.
A guest worker is allowed to stay within the country for the period of time that is specifically authorized in the temporary labor certification. A guest worker can extend their time at a qualifying job by increments up to 1 year each, with a maximum stay period of 3 years.
One important difference between the H-2A and H-2B programs is that the H-2B program has a statutory numerical limit or “cap” on the total number of H-2B guest worker visas issued. While the H-2A agricultural guest worker program has no limit on the number of guest workers brought into the United States, Congress currently set the H-2B program cap at 66,000 for the 2024 fiscal year.
What benefits do guest worker programs provide?
Guest worker programs provide many benefits and advantages, both within the United States and internationally. Guest worker programs contribute to the economic growth of the United States by alleviating labor shortages, ensuring industries have the necessary labor support required to maintain productivity, and enhancing the efficiency of the labor market. Further, guest worker programs can facilitate international partnerships with other countries by reducing unemployment pressures in countries with high unemployment rates and strengthening the diplomatic relations between the two countries.
What challenges do guest worker programs provide?
Despite the benefits of guest worker programs, these programs also come with various disadvantages and drawbacks. Guest workers face unique challenges that can raise issues involving both immigration and employment law. Guest workers are extremely vulnerable to workplace abuses and the exploitation rates of guest workers are high due to their restricted temporary status in the United States. Employers may pay guest workers lower wages compared to domestic employees, may not comply with relevant wage and hour laws that are intended to protect workers and may subject guest workers to poor and unsafe working conditions. Guest workers can face discrimination in recruitment by U.S. employers and can face retaliation at the hands of their employers if they voice complaints or attempt to seek information about their rights. Because of their non-citizen status, guest workers may also have limited labor rights and face more difficulty in seeking legal remedies and redress. Further, many guest workers personally experience social and cultural isolation as a result of being separated from their families and home countries.
In extreme cases, guest workers programs can create labor trafficking violations. Labor trafficking is a form of human trafficking and occurs when an employer utilizes lies, violence, physical or psychological restraints, and/or various forms of fraud and coercion to force an employee into working. Guest workers are particularly vulnerable to labor trafficking because guest workers can face power imbalances with their employers. Employers may threaten the arrest or deportation of guest workers who do not comply, and guest workers may have no other choice but to submit to forced labor and become part of a captive workforce.
Guest worker litigation in the United States
Guest worker programs and the unique challenges that guest workers face present distinct litigation issues because cases can involve complex areas of law, such as employment, immigration, and international law. Guest worker litigation is important because litigation not only helps provide legal remedy and redress to mistreated and exploited guest workers for their individual claims, but litigation can also have larger implications in helping bring forth systemic change by exposing employer abuses, enforcing existing laws, setting new precedents, and leading to improved advocacy and policy reform.
One of the biggest labor trafficking lawsuits in United States history involved the mistreatment of guest workers employed by Signal International, a Gulf Coast marine services company. As alleged in the multiple lawsuits against Signal International, hundreds of welders and pipefitters were lured from India to assist in repairing oil rigs in the aftermath of Hurricane Katrina. Because of the non-agricultural nature of the job, these guest workers entered the United States lawfully under the H-2B visa program after being promised jobs, green cards, and employer provided housing. However, in reality, these promises were false because hundreds of guest workers were subjected to crowded living conditions in shipping containers; isolated in a compound that was surrounded by barbed wires and armed guards; underfed; forced to work around the clock; and charged excessive monthly fees that deprived guest workers of a livable and usable income.
After years of litigation and numerous labor trafficking lawsuits, including one lawsuit where a federal jury awarded $14 million in damages to five Indian guest workers who were defrauded and exploited, a $20 million settlement agreement was reached between the parties to resolve all the remaining lawsuits against Signal International. [3] Further, Signal International agreed to issue an apology to the guest workers who suffered at the hands of their labor practices. The resolution of these lawsuits demonstrated an important shift in the United States because labor traffickers are rarely held accountable and labor trafficking survivors rarely receive civil damages or criminal restitution for the crimes that were committed against them and the hardships they were forced to endure.[4] Not only did the $20 million settlement significantly penalize Signal International for its abuses of hundreds of foreign guest workers, but it also provided substantial justice to the mistreated and exploited guest workers.
Solutions for guest worker programs
Although guest worker programs provide great benefits to the United States and the domestic workforce, these programs are flawed, and the challenges need to be addressed. To provide solutions to these complex challenges, a multi-faceted approach is required. A combination of actions such as policy reform; more stringent enforcement of labor and immigration laws; educational efforts and outreach to employers and employees; and legislative change will be needed to address the issues that surround guest worker programs.
Additionally, access to legal representation is a key component toward remedying the issues faced by thousands of guest workers in this country. If you are a guest worker lawfully present within the United States under either the H-2A or H-2B visa programs and have been subjected to abuse, exploitation, or injustice at the hands of your employer, you will need an attorney who is dedicated to protecting the rights of laborers, both foreign and domestic, and an attorney who understands the complex legal challenges presented in guest worker programs. Here at Matern Law Group, our attorneys recognize the complexities in guest worker litigation and are experienced in navigating these intricacies and the corresponding intersections between employment and immigration law. Matern Law Group is passionate about protecting employee rights and is dedicated to seeking justice that brings forth positive change in the lives of our clients and the community as a whole. Please do not hesitate to contact Matern Law Group for a free consultation.
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[1] https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-temporary-agricultural-workers
[2] https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers
[3] https://www.splcenter.org/news/2015/07/14/20-million-settlement-agreement-reached-labor-trafficking-cases-coordinated-splc-behalf
[4] https://www.urban.org/urban-wire/why-human-trafficking-case-against-signal-international-matters