EPI Applauds the Issuance of Two New Rules Implementing the H-2B Visa Program

After more than five years of litigation in numerous jurisdictions by immigrant and worker advocates who challenged the Bush administration’s illegally promulgated regulations for the H-2B temporary foreign worker program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) have jointly promulgated two new rules—the H-2B “Comprehensive Interim Final Rule” and the “Wage Methodology Final Rule”—which establish important but modest protections for low-wage U.S. workers and guestworkers.

The H-2B temporary foreign worker program—which has been only minimally regulated since 2008—has facilitated the exploitation and human trafficking of guestworkers who work for U.S. employers in various industries, including landscaping, hospitality, forestry, seafood, fairs and carnivals, and construction. A judgment of $14 million in damages was recently awarded to five Indian H-2B guestworkers by a federal jury in Louisiana; the case is just one example of the many abuses that have been inflicted upon H-2B workers over the years.

EPI applauds the new worker protections provided by the H-2B Comprehensive Interim Final Rule, which goes into effect immediately but will be finalized after a 60-day comment period. This rule was originally proposed and finalized in 2012, after notice to the public and the collection and analysis of comments, but was postponed by congressional appropriations riders and enjoined by federal courts at the request of employer associations. While the rules impose some new duties on H-2B employers, the burdens are minimal and justified. The rules will result in more U.S. workers being hired for open positions and prevent the exploitation of H-2B workers. We echo the sentiment of 10 senators who asked DHS and DOL to “mirror the 2012 rule as much as possible” when the rule is finalized after 60 days.

The new protections for H-2B guestworkers include: the right to a copy of their work contract in a language they can understand; a guarantee that they will be paid for at least three-quarters of the hours promised in their work contracts; and reimbursement for inbound travel expenses after a worker completes 50 percent of the employment contract, and employer-paid outbound transportation if the worker remains employed until the end of the job order or if the worker is dismissed before the end of the job order.

In addition, H-2B employers will now be required to prohibit the international labor recruiters they use from charging fees for H-2B jobs, which leave H-2B workers indebted and exploitable. H-2B employers will also be prohibited from retaliating against workers for filing complaints, consulting with advocates or attorneys, or for exercising any of their labor rights or protections. The fear of retaliation by an employer who controls the H-2B worker’s visa and ability to remain in the United States—and ultimately the fear of deportation if an H-2B worker is fired for speaking out—are what degrade labor standards for H-2B workers and the U.S. workers employed alongside them in similar occupations.

Meanwhile, the Wage Methodology Final Rule requires that H-2B employers pay the local average wage for the occupation an H-2B worker will be employed in, according to DOL survey data. We applaud that part of the rule, and believe that no H-2B worker should ever be paid less than the average wage being paid to other workers for the same job in the same geographic region. The rule would be even more effective if it required employers to pay H-2B workers above average wages, because if H-2B workers were paid a premium, it would encourage employers to recruit more extensively for unemployed U.S. workers before hiring H-2B workers—including recruiting regionally or nationwide, instead of just locally.

It’s disappointing that the Wage Methodology Final Rule will allow employers to use alternative wage surveys to set the minimum (prevailing) wage for H-2B workers. Employers only use these alternative surveys to ensure that they can pay their workers the least possible amount, rather than using credible and reliable survey data compiled by DOL. The seafood industry in particular has used private wage surveys to justify paying their H-2B workers wages near the federal minimum wage for grueling work like crabpicking, rather than the  higher average wages paid across Virginia and Maryland for similar work.