The H-2B Program: Flaws and Promise

Carnival workerMost of us scream on carnival rides and enjoy seasonal treats during the summer without thinking about the laborers who make these activities possible. Many of these workers travel long distances at considerable expense to take low-paying, dangerous jobs. These seasonal workers are employed through the H-2B visa program, which is ripe for change.

Under the terms of the H-2B program, U.S. employers petition for seasonal nonagricultural workers to work here on a temporary basis. (The H-2A program works in the same general way for seasonal agricultural workers.) Getting approved to host an H-2B worker is difficult, and three separate federal agencies are involved in the application and visa issuance process.

You might think that, in light of the rigorous process used to approve H-2B workers, there would be strong safeguards in place to protect the workers from exploitation once they arrive in the United States. You would be wrong. As an initial matter, under existing law H-2B workers are not even guaranteed a minimum number of work hours under their employment agreements—unlike H-2A agricultural workers, who are required to receive hours equivalent to three-fourths of the work days specified in their employment contracts.

Moreover, because there are multiple federal agencies involved in the H-2B program, it is incredibly difficult for workers to determine how to pursue an employment-related question or complaint. And, because H-2B workers apply to work in this country for a particular employer and cannot change employers once in the United States, they often feel compelled to continue working for employers who confiscate their passports, make them live in unsanitary housing, subject them to verbal abuse, and otherwise exploit and degrade them. 

Even if H-2B workers are inclined to seek legal help, organizations that receive Legal Services Corporation funding are not permitted to assist them. Thankfully, other organizations and the federal government do step in.  Earlier this year, several H-2B carnival workers from Mexico were awarded thousands of dollars following a Department of Labor investigation sparked by activists concerned about the condition of New York State Fair workers.

Fortunately, the federal government has decided to revamp the guest worker program and make it more just for seasonal workers. In March 2011, the U.S. Department of Labor proposed revisions of the regulations governing H-2B workers. The proposed revisions are significantly more protective of workers’ rights than the current regime. 

In addition, U.S. Senators Robert Menendez (D-NJ), Harry Reid (D-NV), Patrick Leahy (D-VT), Dick Durbin (D-IL), Chuck Schumer (D-NY), John Kerry (D-MA), and Kirsten Gillibrand (D-NY) recently launched the Comprehensive Immigration Reform Act of 2011. This wide-ranging bill contains provisions addressing border security, work authorization, and paths to legal immigration—including an attempt to revive the DREAM Act. Several provisions in the bill would affect guest workers. This legislation currently has no Republican support, but it is encouraging to see lawmakers trying to coalesce around a reform plan. 

The fate of the Comprehensive Immigration Reform Act probably will not be decided anytime soon, but hopefully the Labor Department’s revisions to the H-2B regulations will be adopted quickly and some of the structural flaws in the H-2B program will be remedied.


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