THE FACTS ON THE H-2B PROGRAM
Industry lobbyists claim the H-2B temporary guest worker program is good for U.S. workers and the economy. Numerous studies, investigative reports, and federal lawsuits tell a different story – the H-2B program displaces U.S. workers, lowers wages, and exposes foreign workers to exploitation. Employers urging lawmakers to pass policy riders to expand the H-2B program exponentially and gut crucial wage and labor protections only have their bottom line in mind – not what is best for workers and the U.S. economy. Let’s set the record straight.
Industry Myth: American workers are not interested in temporary jobs that are often manually intensive.
FACT: The H-2B program actively displaces U.S. workers.
Employers claim that U.S. workers will not take the jobs they seek to fill with H-2B workers, but depressed wages and insincere recruitment efforts make a true test of the U.S. labor market impossible.
A recent BuzzFeed News investigation exposed common tactics used by H-2 employers to avoid hiring qualified U.S. workers for the jobs sought to be filled by H-2B workers.1 In one indicative case, a Texas employer advertised for a construction job with a prevailing wage of $11 per hour, but then recruited and employed the H-2B workers to drive trucks – a job that should have been advertised to U.S. workers at a $26 per hour prevailing wage rate. The availability of U.S. workers cannot be genuinely tested when employers misclassify the job sought in order to pay a lower wage and then refuse to hire U.S. workers that do apply.
The FY 2016 appropriations rider defunding Department of Labor (DOL) audits of employers’ U.S. recruitment reduces already inadequate oversight resources, making it even less likely that H-2B employers will face any real consequences for passing over U.S. workers or failing to make good faith recruitment efforts. Given these circumstances, any employer’s claim that they cannot find U.S. workers should be viewed with skepticism.
Industry Myth: Hiring H-2B workers is not a cheap option.
FACT: The H-2B program is cheaper for employers than hiring U.S. workers.
Employers often state that using the H-2B program is as expensive as hiring U.S. workers, but the facts from DOL wage data show otherwise. Some employers save multiple dollars an hour per worker by hiring an H-2B worker instead of a U.S. worker earning the local average wage for the occupation. These savings more than offset the costs of participating in the program.
In the largest H-2B job categories – landscaping and forestry – DOL data shows that in 2014 employers nationwide were able to save $2.59 per hour and $3.80 per hour, respectively, by hiring an H-2B worker instead of a U.S. worker in each occupation.2 Employers’ claims that they are competing with companies that hire undocumented workers at much lower wages are also not supported by evidence: studies show that H-2 workers earn approximately the same wages as undocumented workers.3
The structure of the H-2B program itself also drives down costs for employers by tying a worker’s visa status to a single employer while failing to adequately protect whistleblowers. The H-2B program greatly reduces the likelihood that workers will leave an abusive employer or complain about unpaid wages or poor working conditions. This captive work structure perpetuates cycles of exploitation for H-2B workers and puts downward pressure on the wages and standards for similarly situated American workers, while reducing labor and turnover costs for H-2B employers.
Industry Myth: H-2B employers must pay their H-2B workers and similarly employed American workers a premium wage dictated by the Department of Labor.
FACT: The H-2B program actively depresses wages for U.S. workers.
DOL H-2B certification data shows that the H-2B program’s prevailing wage rules allow for certification of H-2B workers at wages well below the state and national averages in the overwhelming majority of cases. For example, in FY 2014, there were 2,270 H-2B landscaping jobs certified in Colorado. The average wage certified for those H-2B jobs was $10.34 per hour. However, the average hourly wage for all landscaping jobs in Colorado in 2014 was $13.60 an hour, meaning that employers utilizing H-2B workers paid an average of $3.26 per hour less than prevailing wage rates, undercutting the wages of similarly employed U.S. workers by nearly 25%.4 Numerous similar examples could be cited from other industries and other parts of the country.
Additionally, in December 2014, a federal appeals court found that acceptance by the DOL in 2013 and 2014 of employer wage surveys – a method by which employers can present their own formulas for determining a prevailing wage rate – had caused widespread depression of wages paid to U.S. workers.5
The H-2B industry aggressively lobbied to include a rider in the FY 2016 appropriations bill that restricts the DOL from rejecting these wage surveys. This means wages for H-2B workers will be further depressed at a larger scale, making it cheaper for employers to hire H-2B workers instead of U.S. workers.
Industry Myth: The returning worker exemption is necessary because the H-2B program’s annual 66,000 cap is not adequate to meet the demands of a growing economy.
FACT: The size of our temporary work visa programs should be addressed through immigration reform legislation, not the appropriations process.
The relentless employer demand for access to more H-2B visas is evidence of how dependent certain industries have become on a steady stream of captive, exploitable labor that they can underpay and replace at will. Our immigration system should not be used to prop up low road business models. Instead, we should be setting policies that give employers incentives to raise wages and standards for all workers. Foreign workers who meet real needs in the labor force year upon year should be offered a pathway to citizenship rather than the opportunity to participate indefinitely in indentured work programs that separate them from their families and limit their rights and prospects. Congress should create an independent commission to measure labor market shortages and recommend future entry levels based upon real need, rather than allowing industry lobbyists and employer demand to dictate visa caps.
Industry Myth: H-2B workers are adequately protected by U.S. labor laws.
FACT: The H-2B program routinely exposes foreign workers to abuses.
Industry claims that program abuses are limited to a few bad apple employers, but this assertion is belied by the facts. Studies, lawsuits, and investigative reports show that the abuse of H-2B workers at the hands of the employers is systemic. BuzzFeed News exposed the rampant abuse of H-2B workers in a recent investigation, calling the program “the New American Slavery.”6 Last year H-2B workers from India won a $14 million jury verdict for human trafficking and discrimination against their recruiters and employer, Signal International.7 In 2016, a class of hundreds of H-2B workers from Jamaica settled a lawsuit with a South Carolina luxury golf resort, Kiawah Island Golf Resort, for $2.3 million in back wages and other damages.8 The cases of H-2B worker abuse, wage theft, trafficking, and discrimination are too numerous to be called anecdotal, and evidence of the extent of abuses continues to mount.9
Employers point to the fact that many H-2B workers return year after year as evidence of the program’s benefits to them, but the fact that workers from developing countries often seek to return to work on H-2B visas says more about the poor job prospects and working conditions in their home countries than it does about adherence to high standards in the U.S. labor market. If our immigration system is ever to become a force to lift standards and promote shared prosperity, we must ensure that the treatment of all workers in the U.S. economy measures up to established national and international norms, not ease our conscience through comparisons to parts of the world that are experiencing a clear deficit of decent work. Such analysis dooms us to continuing to allow our work visa programs to help facilitate the race to the bottom in our global economy.
Industry Myth: Small businesses are harmed by “burdensome” H-2B regulations.
FACT: Large corporations use the H-2B program – not just small businesses.
While small businesses may be the face of industry lobbying efforts, they are by no means the only employers using the H-2B program. Many major corporations get certified to hire H-2B workers directly each year, and not only Donald Trump’s properties.10 Other big corporate H-2B users include multimillion-dollar brands such as Hilton, Starwood, Pinnacle Gaming, and TruGreen Landcare. Many more large corporations benefit from the H-2B program indirectly, through chains of subcontractors that obtain the H-2B certification in their name in order to increase corporate profit margins. Any expansion of the H-2B program will continue to benefit these major corporations, despite the fact that they can undoubtedly afford to set wages at a level sufficient to attract U.S. workers.
1 Jessica Garrison,“All You Americans Are Fired”, BuzzFeed, Dec. 1, 2015.
2 Daniel Costa, Economic Policy Institute, The H-2B temporary foreign worker program: For labor shortages or cheap, temporary labor?, http://www.epi.org/publication/h2b-temporary-foreign-worker-program-forlabor-shortages-or-cheap-temporary-labor/#epi-toc-8
3 Lauren Apgar, Economic Policy Institute, Authorized Status, Limited Returns, http://www.epi.org/publication/authorized-statuslimited-returns-labor-market-outcomes-temporary-mexican-workers/
4 See note 2 supra.
5 Comite de Apoyo a los Trabajadores Agricolas v. Perez, 774 F.3d 173, 188 (3d Cir. 2014).
6 Jessica Garrison, The New American Slavery: Invited to the US, Foreign Workers Find a Nightmare, BuzzFeed, July 24, 2015.
7 David v. Signal Int’l, LLC, 257 F.R.D. 114 (E.D. La. 2009) (H-2B visa welders and fitters trafficked to Gulf Coast); Peg Brickley, Accused of Labor Trafficking, Oil Rig Repairer Files for Bankruptcy, http://www.wsj.com/articles/signal-internationalfiles-for-bankruptcy-1436787503.
8 Moodie v. Kiawah Island Inn Co., No. 15-1097 (D.S.C. 2015).
9 For evidence of widespread abuses in the H-2B program, see Centro de Los Derechos del Migrante, Inc. & Am. Univ., Wash. College of Law, Picked Apart: The Hidden Struggles of Migrant Worker Women in the Maryland Crab Industry (2011), available at http://www.cdmigrante.org/wp-content/uploads/2012/01/PickedApart.pdf; Centro de los Derechos del Migrante, Inc., Recruitment Revealed: Fundamental Flaws in the H-2 Temporary Worker Programs and Recommendations for Change (2013), available at http://www.cdmigrante.org/wp-content/uploads/2013/01/Recruitment-Revealed_Fundamental-Flaws-in-the-H-2-Temporary-Worker-Program-and-Recommendations-for-Change.pdf; Centro de los Derechos del Migrante, Inc. & Am. Univ., Wash. College of Law, Taken for a Ride: Migrant Workers in the U.S. Fair and Carnival Industry (2013), http://www.cdmigrante.org/wpcontent/uploads/2013/02/110145_Taken_for_a_Ride_Report_Final.pdf; Southern Poverty Law Center, Close to Slavery: Guest Worker Programs in the United States (2013), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf; Southern Poverty Law Center, Beneath the Pines, https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/beneaththepines.pdf; see also United States v. Manuel Baldonado, 9:10-cr-80057-KAM (S.D. Fl. 2010) (criminal prosecution for H-2B visa fraud); United States v. Askarkhodjaev, No.4:09-CR-00143 (W.D. Mo. May 27, 2009) (H-2B hospitality workers).
10 Mica Rosenberg, Exclusive: Donald Trump's companies have sought visas to import at least 1,100 workers, Reuters, http://www.reuters.com/article/us-usa-election-trump-exclusive-idUSKCN0Q62RQ20150802.