Migrant farmworkers in Georgia and across the country are set to receive new protections from employer abuse.
Last month, the Biden administration announced a set of new rules that aim to modernize the H-2A farmworker visa program, strengthening workers’ rights and creating avenues for migrants to leave bad employers without compromising their legal status in the country.
The H-2A program, which allows foreign farmworkers to legally come work in the U.S. for months at a time, is crucial to Georgia’s agricultural industry. Year after year, employers in the state bring in one of the country’s highest totals of H-2A workers. According to Dr. Cesar Escalante, a professor in the University of Georgia’s Department of Agricultural and Applied Economics, Georgia takes in a disproportionately large number of H-2A workers relative to other, bigger states, because there are scant sources of domestic farm labor here. Georgia farms also tend to produce more labor-intensive crops. Many are small and medium-sized operations that can’t afford to turn to mechanization as an alternative to bringing guestworkers in.
Reports of worker abuse out of Georgia illustrate the shortcomings of the H-2A program’s labor protections. Two years ago, South Georgia made national news when federal investigators uncovered a criminal ring that allegedly subjected H-2A workers to “modern-day slavery,” with migrants being forced to dig for onions with their bare hands under the threat of gun violence. Earlier this month, The Atlanta Journal-Constitution reported on claims that contractors hired by farmers to find H-2A workers are charging illegal recruitment fees, putting workers in debt and making them vulnerable to abuse.
“Georgia is the poster child of everything that is wrong with the H-2A program,” said Alma Young, who works with H-2A workers in South Georgia through her role as coordinator with the United Farm Workers Foundation.
Advocates see the planned changes to the H-2A program – some of which were announced by the U.S. Department of Labor, others by the U.S. Department of Homeland Security – as an encouraging step in the right direction.
Among those changes is a move that would give workers a 60-day grace period in the country should they need to leave the employer that sponsored their H-2A visa. No such flexibility exists at the moment, with migrants losing their legal status as soon as they leave the farm, even if they are experiencing abuse at work.
“Right now, workers don’t have a lot of options, right? They can keep working in the bad situation or they can leave and become undocumented or they can go home. And most people choose the first one of those three options. They put up with a really bad situation, unfortunately, until it gets worse, and worse and worse,” said Jim Knoepp, senior supervising attorney for the Southern Poverty Law Center’s Immigrant Justice Project.
Advocates say that having work visas tied to one specific employer can create dangerous power imbalances. That’s something that the new DHS grace period would address. During those 60 days, workers can make plans to leave the country without accumulating “unlawful presence,” or time spent in the U.S. without authorization, which can make it difficult to re-enter the country. Ideally, workers would be able to use their grace period to try to find another H-2A employer.
A grace period could make an important difference to someone like a female H-2A worker who spoke to the AJC in South Georgia on condition of anonymity because she feared retaliation or deportation for sharing her story.
She said her employer had not provided any work for three weeks, and that she would like to be able to find another job that would get her paid.
“If we leave our families to come here, it’s to make money,” she said.
Both DHS and DOL proposals take aim at an unlawful practice advocates say has become commonplace in the H-2A program: charging workers recruitment fees. At the heart of that issue is farmers’ increasing reliance on third party farm labor contractors, whom they hire to recruit H-2A workers, often with the cooperation of associates in Latin America. H-2A program rules forbid recruitment fees, but people close to the Georgia farmworker community say they frequently hear of H-2A laborers having paid thousands of dollars to come to the U.S.
The DOL proposal aims to improve the status quo by requiring the foreign labor recruitment process to be more transparent. Their new rule would require employers to provide a copy of all agreements with any agent or recruiter the employer partners with to find H-2A workers. The proposed rule would also require employers to identify and disclose the name and location of anyone soliciting H-2A workers on their behalf.
Meanwhile, the DHS rule would impose steeper penalties on employers who are found to have charged workers illegal fees. It would also hold farmers accountable if labor recruiters they employ charge workers fees. At the moment, according to DHS, farmers can claim ignorance when recruiters are found to have collected unlawful feels. Under a new “due diligence obligation,” that recourse would not be there. Farmers would have to ask recruiters about their dealings with workers. They would have to be able to show government officials that, for example, they made inquiries about recruiters’ financial standing and revenue sources, to make sure they won’t need to rely on illegal fees to stay afloat. If violations are found, penalties would hit both contractors and farmers.
“I think this gets a little closer to this idea that if you want to stop that practice, you need to hold the employer strictly liable for any kind of recruitment fees that get charged to workers,” Knoepp said. “It’s like, ‘No, if it turns out that the workers had to pay money to get a job working at your farm, you’re responsible.’”
Additional changes proposed by the government agencies center around protections for worker self-advocacy, including the right for workers to invite and accept guests – such as members from labor organizations – into employer-provided housing.
“It’s happened to us in the past where somebody says they’re going to call the police and argue that we’re trespassing because we’re out there trying to give workers information about what their rights are,” Knoepp said.
The government’s approach to updating H-2A standards is likely to generate some pushback from farmers.
Chris Butts, executive director of the Georgia Fruit and Vegetable Growers Association, said he is concerned about agency overreach that bypasses the legislative process.
His organization wants to “make sure that we’re not just creating new rules without having any plans for debate and dialogue,” he said. “That’s our initial concern.”
Butts also pointed out that increased regulatory burden in the H-2A program will make growers more likely to seek the services of farm labor contractors, accelerating the very trend advocates are concerned about. But he recognizes the importance for farmers to know who they are getting in business with.
“When you’re a small business owner, a farmer, you want to spend your days raising your crop … and not trying to keep up with 300 pages of new regulations. So, what it results in is most of our guys are now forced to either use a consulting company or do a labor contractor that handles everything,” he said. “There’s absolutely nothing wrong with that. It’s just a different way of doing it. And you’ve got to make sure you’re being thorough and fully vetting those contractors on the front end.”
There is an open public comment period on both agency rules. Individuals and organizations can share their opinion on the Federal Register’s website (federalregister.gov), by clicking on “submit a formal comment” on the webpages of the DOL and DHS proposals.
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© 2023 The Atlanta Journal-Constitution
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