The H-2A visa program has grown exponentially in the last few years, as agricultural operations are increasingly opting to hire temporary foreign guestworkers to come to the United States and work tending and picking their crops, as opposed to local workers or other workers already in the U.S. migrant stream. The chance to temporarily work lawfully in the U.S. with certain minimum contract wage and working condition guarantees is often seen as a great economic opportunity for many in countries like Mexico, or Guatemala, were unemployment rates are high and wages are low. However, this program can and has been used by some to exploit unsuspecting jobseekers looking to participate in the program.
Individuals from areas with little economic opportunity seeking a work opportunity in the United States are vulnerable to abuse. There is a vast recruitment network in countries like Mexico that send many workers to the U.S. to work on temporary visas such as the H-2A visa. It is not uncommon for recruiters for U.S. companies, or those holding themselves out to be recruiters, to tell jobseekers that in order to have a job they must pay hundreds or thousands of dollars in fees “to get their name on the list”, and to have a shot at getting the guestworker visa. The charging of these fees is illegal and may be presented as a recruitment fee or paperwork fee (de papeleo). Unscrupulous recruiters often prey on first time jobseekers that do not know that this practice is illegal. Hopeful to invest in the promise of a better future, many become indebted to make these significant payments, unaware that this is the first step to becoming victims of exploitation.
Jobseekers may also be asked to front the cost of their H-2A visa and travel expenses, which includes hotel accommodations, transportation, food, border crossing fees, etc. Under North Carolina law, if a guestworker’s employer requires him/her to front these costs, they must be reimbursed in the workers’ first paycheck.
In order to pay the illegal fees, and the travel and visa expenses, many workers take out loans. They may agree to a high interest loan rate or use their house or family’s property as collateral in order to get all the money, relying on recruiters’ promises of ample work that will begin shortly after they arrive to the United States.
The reality is usually grimmer. It is not uncommon that the recruitment was a scam and there is no job available, workers are not reimbursed with their first paycheck, they may have to wait for weeks for the work to actually begin, or they may come to the US to find out that the working and living conditions are dangerous and unfair.
Overwhelmed with debt, these workers find themselves in the tough position of struggling to pay back much more principal and accruing interest because they were not reimbursed while they are supporting themselves and their families in their home countries. In extreme circumstances, this debt can be exploited to compel forced labor in a human trafficking scheme.
In order to avoid this situation, it is of utmost importance to ensure that jobseekers understand what a fraudulent recruitment arrangement looks like.
All individuals being recruited for an H-2A job should receive a contract at the time of recruitment that includes key information such as their promised salary, the name and place of employment, a description of the job they will be performing, the expected length of the contract, information about the amount of work offered, housing information, and workers’ compensation information. This information will help someone make an informed decision about whether they want to accept the job offer. The contract is also important because it provides written proof of the conditions promised to the jobseeker. Leaving a copy of the contract with family members is recommended as it will provide them with the employer’s contact information and the place where their loved one will be housed.
If a jobseeker is unsure about the veracity of the job offer made in Mexico, or if the potential employer is charging them recruitment or paperwork fees, they may contact the Centro de los Derechos del Migrante at 01 (800) 590-1773 (Mexico). If the job offer was made in Mexico or Central America, they may contact Justice in Motion at (646) 351-1160 (USA).
Jobseekers should remember that, as we mentioned above, it is the employer’s responsibility to pay or reimburse a worker for the travel expenses to the job site in the United States including any fees related to obtaining the visa, the cost of transportation from the place of recruitment (this is presumed to be the worker’s hometown) to the jobsite in the United States, the cost of accommodation while the worker is waiting for their interview at the consulate, food costs during their travel, and the border crossing fee. The employer is not required to reimburse an H-2A worker for the cost of her/her passport. If a worker has paid for any of these costs, their employer should reimburse them no later than their first check.
If you, or someone you know, has been a victim of unlawful treatment in the H-2A program recruitment process, please contact Legal Aid of North Carolina by calling (800) 777- 5869 to learn more information about your options.
This blog post contains legal information for educational purposes only. It does not constitute legal advice.