Published by Chris Chmielenski
Both the United States Citizenship and Immigration Services (USCIS) and the Wage and Hour Division (WHD) have noticed new regulations designed to protect foreign workers from the explosion of exploitation within the labor market. While the attempts to stop the exploitation should be applauded, the new regulations are properly understood as mere Band-Aids on deep wounds. Not only do much of the regulations amount to restating the rules that are already being broken, they are still relying on a severely understaffed workforce to enforce them. Without dramatic reforms to H2 visas, we can expect more exploitation that violates foreign workers and shuts out Americans.
The USCIS regulation deals with both the H-2A and H-2B visas. One of the issues the rule would address revolves around the fact that foreign workers are beholden to their employer. It increases the ability of a foreign worker to change jobs without first leaving the country and locating a new employer to petition the government. This is referred to as “portability”. Portability already existed in the rules under a reduced timeframe and it also required that employers taking advantage be enrolled in E-Verify. Sadly, the regulation removes the E-Verify component to broaden the opportunities for the foreign workers. At a time when we desperately need more E-Verify compliance, it is an unfortunate step back.
Additionally, the rule would require a one year bar for employers using the visa programs if they are caught requiring employees to pay otherwise prohibited fees for their work. This is important because employers have been stealing money from the foreign workers through the charging of all sorts of “fees”. Many workers end up in debt bondage through some of these arrangements.
Another change in the USCIS rule is providing “whistleblower” protection for H2 workers similar to the protections for H-1B employees. Essentially, a worker who can prove retaliation by an employer for speaking out for violations could remain in the United States and work for another employer and even change status to another nonimmigrant category to do so. Their hope is that this protection will allow foreign workers to speak freely and report violations.
As for the WHD rule, it focuses on the H-2A program. The WHD specifically expands protected action by H-2A workers to collectively fight for better working conditions without fear of retaliation. This also includes allowing H-2A workers to invite guests, like labor unions, to their living quarters (which are provided by the employers). These types of protections are designed to allow H-2A workers access to organizations that would defend their rights. In theory, this functions as a force multiplier for stopping well-known employer abuses.
The WHD also proposes to change the effective date for Adverse Effect Wage Rate (AEWR) so that all workers would be required to be paid the new rate upon its publication. Also, the WHD attempts to streamline the debarment process for violators (including successors in interest so employers cannot easily change their name and continue violating) and includes much more transparency requirements for employers and recruiters of H-2A employees.
So, it is fair to say that both USCIS and WHD are trying, which is more than they have been able or willing to do in the past. The problems with their attempt largely point to bigger issues with the overall programs. For starters, to be clear, a lot of this is sound and fury signifying nothing. Neither USCIS nor WHD have the resources to enforce these new regulations any more than they have the resources to enforce the current rules. The Economic Policy Institute (EPI) reported that WHD recently had the lowest number of investigations of farms since 2000.
USCIS has policies on the books that make the agency little more than an approval assembly line for benefit applications. For example, USCIS has an official policy to defer to past decisions on extensions of benefit applications. This saves time (and they are overwhelmed), but doubles and triples down when mistakes are made in the first instance. USCIS has other policies that require staff to defend denials with extra paperwork that is not required for approvals. Often, denials are subject to more scrutiny than approvals and staff are also sometimes given quotas for number of applications to process which further incentivizes less scrutiny for fraud. The Fraud Detection and National Security Directorate (FDNS) component of USCIS has seen completed cases decline during the Biden Administration, according to the Government Accountability Office (GAO).
Setting aside the lack of resources for enforcement at scale, a lot of this new rulemaking amounts to restating what is already in the rules. Employers are not supposed to be stealing wages, charging fees, creating unsafe work environments, or retaliating against employees who raise concerns. These are rules not only for foreign workers, but are in our labor and employment laws already. In other words, these new proposed regulations are not breaking much new ground. Instead, they are attempting to coax foreign workers into fighting back on their own because of the lack of resources mentioned above. Of course, if the foreign workers know the government is asleep at the wheel and they are desperate for work, then there is little chance for these new rules to make a difference.
The current H2 programs have exploitation baked in the cake. There is ample evidence that the enforcement calvary are not walking through that door. Employers reading these new regulations will see stiffer penalties on paper, but they have seen a lot written down that was never enforced. That’s because enforcement of the rules is expensive. It not only costs money, but it is time intensive. The government cannot just suspect a violation and go from there. Even assuming they get a lead on violations, the investigation can take months or years. Assuming they can get cooperation from workers and locate relevant evidence, they have to obtain some final judgment and then battle any appeals. Detecting and punishing fraud costs time and money that the government does not have. If it is not a major priority for a government agency, it will quickly fall by the wayside. Employers and employees know this.
If there is going to be real reform of the H2 visas, and nonimmigrant work visas broadly speaking, it will first have to acknowledge the resource, scale, and priorities arguments. First, resources for the oversight of these programs must match the scale of them. Either we massively increase funding directed to regulating these programs or we reduce the scale to match the resources we are willing to devote to managing them. Any other choice is essentially feeding workers to an exploitation economy. Additionally, the government must have the integrity of the system as a paramount concern. Policies that place efficiency of approvals over consideration of valid reasons for denial lead to the abuse we see across the immigration landscape.
When you read the rules we are discussing here you will see the government admitting the extensive nature of exploitation and abuse of workers throughout these programs. The same people writing these admissions were likely part of approving many of those petitions for workers who were abused. Each and every one of these abuse cases cited by the government only happened because they failed in their jobs. Our lonely eyes now turn to them to save us.
Real reform requires making the choice between massively increasing resources for enforcement or reducing the scale to a manageable one. Given that American workers are harmed by the current massive numbers of foreign workers, it seems to me the obvious solution is reducing the numbers in these programs. Otherwise, American taxpayers are funding a system that is crowding them out of the job market or reducing their wages at best. For the government, proposing new regulations must also accompany a real, good faith, change in the permissive policies currently running the immigration system. It cannot just be the rules that change governing employers. The government itself must make enforcement a priority by changing how it governs staff who adjudicate benefit applications. This includes implementing policies that prioritize accuracy of decisions rather than speed. Rules are only as effective as the enforcement of them. These new rules will suffer the same fate as the old unless a lot more change is gonna come.
JARED CULVER is a Legal Analyst for NumbersUSA
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