Jared Culver's Picture


  by  Jared Culver

A lawsuit was filed in Nevada this week alleging dreadful labor conditions for alien workers in the United States. The case is Alvarado v. Western Range Association, and it alleges what is effectively a racket by ranchers conspiring to artificially deflate wages for both foreign and domestic shepherds. The visa program being used to import the “indentured servants” is the numerically uncapped H-2A, which in theory has extensive labor protections attached. While this lawsuit is new, the abuse of the H-2A program is a tale as old as time. A 2021 indictment by DOJ alleged actual slavery and human trafficking within the H-2A program. A 2019 report by a migrant worker advocacy group interviewed alien workers in H-2A and found extensive abuse of the legal rights of the workers. It is clear to anyone paying attention that the current framework for H-2A is not helping foreign or domestic workers, and at scale our temporary work programs are in fact suppressing wages and working conditions for workers to the sole benefit of employers.

The Alvarado case has just started, but the history of abuse in H-2A is legion so we can at least review the complaint for allegations in common with what we already know. One of the first things the plaintiff alleges is the extremely low pay. Migrants coming to work are, by law, required to be paid a reasonable wage. Congress understood the incentive for importing cheaper labor and H-2A workers are supposed to be protected by wage rates set by the Department of Labor (DOL). The complaint says many shepherds are paid $4-5 an hour while living in squalor. It also alleges ranchers keep all workers, foreign and domestic, at the wage floor set by DOL through an agreement to not compete for workers among themselves. So the ranchers get unlimited captive cheap labor and workers get low wages and horrible working conditions.

How horrible are the working conditions? Mr. Alvarado claims he was forced to sleep outside in the elements, provided expired food to eat, and refused clothing and medical treatment when he needed it. He also said he was threatened with physical abuse and deportation. He even alleges that his employer seized his passport and visa so he could not leave.

Now these are all simply allegations, but if you care to look you can see his allegations track with a lot of the documented abuse that is widespread in H-2A. Needless to say this punctures the sunny narrative of a “nation of immigrants” welcoming temporary workers in a mutually beneficial “win-win” scenario. In truth, the foreign workers are exploited, domestic workers are erased, and the employers bank the profit off their backs.

This is troubling in the H-2A context precisely because it is one of the more regulated programs of foreign workers. The Departments of Justice, Labor, and Homeland Security all have enforcement responsibility. The regulations for housing and wages within H-2A are extensive. The George W. Bush, Barack Obama, and Donald Trump administrations all produced regulations attempting to fine tune the program. And yet the only consistent results of these efforts by the government are more and more lawsuits and indictments demonstrating deeper and darker abuse of workers.

One major reason for the persistent abuse is simply the numbers in H-2A are massive and growing. It is time to acknowledge that the U.S. Government has bitten off far more than it can chew. The Department of Homeland Security (DHS) cannot effectively manage its workload. In addition to hundreds of thousands of H-2A migrants, there are millions more in other work categories and discretionary programs created by the Department. They clearly cannot effectively oversee the massive amounts of people admitted to this country. If you don’t believe me, listen to them: they essentially ended worksite enforcement investigations last year. Yes indeed, they reduced enforcement at the time of federal indictments alleging slavery in worksites using alien workers. Therefore, the treatment of the workers depends on the good will of the employers. DHS talks about “limited resources” when it comes to investigating illegal immigrants in the country, but it definitely must be applied to the issue of legal alien worker exploitation. They have largely delegated their oversight responsibility over the henhouse to the foxes.

That does not mean that every employer is exploiting workers, but it does mean they are free to do so with limited risk of ever being punished. In that environment advocates for expanding temporary work even more are tossing many workers dreaming of a better life into the meat grinder. This, of course, says nothing of the American workers priced out of these jobs. Assuming of course they could even get hired at lower wages. Remember, Facebook settled a case where they discriminated against American workers altogether. And we are all familiar now with American workers being forced to train their cheaper replacements.

There seem to be only two options to solve the problem: Either we increase government capacity to oversee these work programs at scale along with increasing punishments to deter abuse, or we reduce the numbers of temporary workers to a scale that can be effectively regulated by the current capacity of government. The former would entail a massive expansion of government at an extensive cost to Americans. Just the sheer numbers being imported every year right now would require a massive expansion of both staff numbers and authority. This would require a large investment of time and taxpayer money as a hand out to prop up employers with failing business models built on exploitation of cheap labor. That’s why the latter option makes far more sense. The immigration system should be reduced to a scale of numbers we can reasonably regulate. The immigration system is not broken, the engine is flooded. Reducing immigration to manageable levels would ease the administrative burden on the government and require employers to raise wages to entice American workers and/or innovate their business model. That is the actual win/win scenario for America. The choice should be simple: Perpetuate an immigration system that incentivizes worker exploitation and business stagnation or create one that incentivizes higher American wages and innovative business models.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Thu, Sep 22nd 2022 @ 5:25pm EDT

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