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Class Action Alleges Forced Labor Through the H-2A Program

author Published by Chris Chmielenski

Another day, another story of slavery in the American immigration system. Here, MBR Farms is alleged by class plaintiffs to have been using the legal H-2A program for agricultural workers as their personal trafficking pipeline. MBR Farms owners and operators have been indicted for labor trafficking and an assortment of other crimes, as well. The criminal indictment charges MBR Farms with being run by a transnational criminal organization (TCO) that, at least from 2015, petitioned the US government for roughly 71,000 foreign workers. All those petitions by a TCO for all those years, and the H-2A administrators were none the wiser and, instead, approved many of the petitions. A skeptic might think TCOs running a slavery operation within the H-2A program means it needs some drastic overhauls, but not our Congress which has been trying to legalize indentured servitude in H-2A and complains the government is not permissive enough in approving petitions.

The H-2A program, on paper, is one of the most regulated temporary work visa programs in the immigration system. In fact, one can find many examples of farm employers and their defenders complaining about how hard it is to use the program. And, again, on paper, this certainly seems like a defensible critique. There are four Federal departments with some degree of oversight within the H-2A process and tons of regulations concerning pay and treatment of agricultural workers on the books. But life is lived in the world, not on paper. Here in the real world, one must ask how complex and overregulated the program is, when slavery seems to keep popping up on a grand scale? If TCOs can successfully use the program for years and evade detection from four Federal departments, then how complex is it really?

The existence of exploitative employers in the H-2A program is not a case of a few bad apples. Employees have been talking about this for a long time. Not to get all philosophical, but what is a rule that is not enforced? Perhaps, to law-abiding citizens, a rule is a rule whether or not there is the prospect of enforcement behind it. However, for slavers, rules without enforcement are akin to stories of Santa Claus. Jolly Old Saint Nick may be keeping a list of who is naughty and nice, but somehow presents are still under the tree for one and all.

While the rules and oversight on paper are extensive for prospective H-2A employers, let’s take a look how all those rules and oversight worked out in this particular instance. From the plaintiff’s complaint:

“The Traffickers used the H-2A visa program to transport Plaintiffs and other class members to Georgia and force them to work in dangerous conditions with little to no pay, housed them in substandard housing, and subjected them to ongoing abuse. The Traffickers misrepresented the material terms and conditions of employment, including the pay and living conditions, and then charged various unlawful fees to Plaintiffs and other migrant farmworkers, which were never reimbursed. The Traffickers then laundered the unlawful profits from their scheme, including through the Seminole Hard Rock Hotel and Casino. As a result of Traffickers’ actions, Plaintiffs and other class members suffered significant economic and psychological harm.”

What a trade for the employees. The TCO gets profit and they get economic and psychological harm. Keep in mind, under H-2A and all the “complex” regulations, none of this should be possible. There are wage requirements, housing requirements, and four Federal departments with oversight over this process. Yet somehow, some way, this TCO operated with impunity for years with the government signing off every step of the way.

The complaint also alleges the familiar process of the employer seizing workers’ passports, threatening violence and committing actual violence. None of this is obviously allowed by the multiple bureaucracies overseeing the H-2A program. Yet it keeps happening over and over. Looking at all the abuse piling up in the H-2A program, I think it is clear the rules designed to govern the employers are a paper tiger. The sleight of hand from the lobbyists is to point to the paper and ignore the reality. “Just look at all those regulations!” Never ever take a peek behind the curtain to see all the violations of the regulations.

Part of the reason for the disconnect between the rules on paper and the reality is that the number of aliens admitted to the United States has grown exponentially—well beyond the oversight capabilities of the limited government staff in charge. With hundreds of thousands of foreign workers admitted under our temporary work programs annually (both the legal ones and the ones presidents dream up), it is impossible to ensure the rules are followed. Instead, we have an honor system for dishonorable employers. To solve this problem we are going to have to start reducing the number of aliens we admit to the United States to a number we can actually regulate. Otherwise, we are encouraging dishonorable employers to exploit vulnerable human beings.

Another reason for the bleak reality is that the Executive Branch has confused its role in the immigration process. Namely, it has prioritized accommodation of immigration benefits requests above and beyond its duty to enforce our laws. Our immigration system has been treated by the Executive Branch as a concierge to the business community. For example, the United States Citizenship and Immigration Services (USCIS), refers to foreign workers and other aliens as “customers.” This is why we see worksite enforcement ended. This is why USCIS rubber stamps petitions of repeat applicants. It is also why they have been expanding premium processing to serve as an express lane for rapid unvetted approvals. Remember the old adage, “the customer is always right?” The government is working overtime to create an assembly line of approvals for all immigration requests at the cost of enforcement. In reality, rules on wage rates and labor standards are there to protect the “customers.” However, too often, the government is acting like Amazon where they perceive their role as shipping labor to employers as fast as possible with no hassle. This renders enforcement of rules a low priority.

When the government abdicates its enforcement responsibility, it is the vulnerable they are supposed to protect who pay the price. The widespread exploitation within the H-2A program is a prime example (though sadly not even close to the only example) of what happens when the government writes rules, but fails to enforce them. The only thing broken in our immigration law is the will to enforce it. Beset by overwhelming numbers and misplaced priorities, the government is failing foreign and American workers. In fact, it is failing everyone but greedy employers. It is time to confront those deliberate policy choices and decide whether we think slavery and worker exploitation is an acceptable cost.

JARED CULVER is a Legal Analyst for NumbersUSA

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