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 aimed at modernizing the H-2A visa program for farm workers, strengthening workers’ rights and creating opportunities for migrants to leave bad employers without losing their legal status to endanger in the country.
The H-2A program, which allows foreign agricultural workers to work legally in the U.S. for months at a time, is critical to Georgia’s agricultural industry. Year after year, employers in the state hire one of the highest total numbers of H-2A workers in the country. According to Dr. Cesar Escalante, a professor in the University of Georgia’s Department of Agricultural and Applied Economics, says Georgia accepts a disproportionate number of H-2A workers compared to other, larger states because there are few sources of domestic farm workers. Georgia farms also tend to grow more labor-intensive crops. Many are small and medium-sized businesses that cannot afford to switch to mechanization instead of guest workers.
Reports of mistreatment of Georgia workers illustrate the H-2A program’s worker protection deficiencies. Two years ago, South Georgia made national headlines when federal investigators uncovered a criminal gang that allegedly subjected H-2A workers to “modern-day slavery,” forcing migrants to dig for onions with their bare hands under the threat of gun violence. Earlier this month, the Atlanta Journal-Constitution reported on allegations that contractors hired by farmers to find H-2A workers charge illegal recruiting fees, leaving workers indebted and vulnerable to abuse.
“Georgia is the poster child for everything that is wrong with the H-2A program,” said Alma Young, who works with H-2A workers in south Georgia in her role as coordinator at the United Farm Workers Foundation.
Advocates see the proposed changes to the H-2A program — some announced by the U.S. Department of Labor and others by the U.S. Department of Homeland Security — as an encouraging step in the right direction.
Those changes include a measure that gives workers a 60-day grace period in the country if they need to leave the employer that sponsored their H-2A visa. Such flexibility does not currently exist as migrants lose their legal status as soon as they leave the farm, even if they are mistreated at work.
“Workers don’t have a lot of options right now, do they? They can continue working in the bad situation, they can leave and remain undocumented, or they can go home. And most people choose the first of these three options. They unfortunately endure a really bad situation until it gets worse and worse,” said Jim Knoepp, senior managing attorney for the Southern Poverty Law Center’s Immigrant Justice Project.
Advocates say tying work visas to a specific employer can create dangerous power imbalances. This is something that DHS’s new grace period would address. During these 60 days, workers can make plans to leave the country without accumulating “unlawful presence” or spending time in the U.S. without authorization, which can make re-entry into the country more difficult. Ideally, workers could use their grace period to try to find another H-2A employer.
A grace period could make an important difference for someone like an H-2A worker who spoke to the AJC in South Georgia on the condition of anonymity because she feared retaliation or deportation for telling her story.
She said her employer hasn’t done any work for three weeks and she would like to find another job that pays her money.
“If we leave our families to come here, it’s only to make money,” she said.
Both the DHS and DOL proposals target an unlawful practice that advocates say has become commonplace in the H-2A program: charging fees to hire workers. At the heart of this problem is farmers’ increasing reliance on third-party contractors to recruit H-2A workers, often in collaboration with partners in Latin America. The H-2A program’s rules prohibit recruitment fees, but people close to Georgia’s farmworker community say they often hear from H-2A workers who have paid thousands of dollars to come to the United States
The DOL proposal aims to improve the status quo by requiring that the recruitment process for foreign workers be more transparent. Their new rule requires employers to provide a copy of all agreements with any broker or recruiter with whom the employer works to find H-2A workers. The proposed rule also requires employers to identify and disclose the name and location of all individuals recruiting H-2A workers on their behalf.
Meanwhile, the DHS rule would impose tougher penalties on employers found to have charged their workers illegal fees. Farmers would also be held accountable if the labor brokers they employ charge fees to workers. According to DHS, farmers can currently plead ignorance if recruiters are found to have garnered unlawful sentiment. Under a new “duty of care” there would be no such recourse. Farmers would have to ask recruiters about their treatment of workers. They would need to be able to prove to government officials that they have conducted research into, for example, recruiters’ financial status and sources of income to ensure they are not relying on illegal fees to stay afloat. If violations are found, both contractors and farmers face penalties.
“I think this gets a little closer to the idea that if you want to stop this practice, you have to hold the employer strictly liable for any kind of hiring fees that are charged to employees,” Knoepp said. “It’s like, ‘No, if it turns out that workers had to pay money to get a job on your farm, you’re responsible.'”
Other changes proposed by government authorities focus on protecting employee self-representation, including the right of employees to invite and host guests – such as members of labor organizations – in employer-provided accommodation.
“It’s happened to us in the past where someone has said they’re going to call the police and argue that we’re trespassing because we’re out there trying to give workers information about their rights,” Knoepp said.
The administration’s approach to updating H-2A standards is likely to face resistance from farmers.
Chris Butts, executive director of the Georgia Fruit and Vegetable Growers Association, said he was concerned about authorities overreaching bypassing the legislative process.
His organization wants to “make sure that we don’t just create new rules without having plans for debate and dialogue,” he said. “That is our first concern.”
Butts also pointed out that the increased regulatory burden in the H-2A program will increase the likelihood that farmers will seek the services of agricultural contractors, accelerating the very trend that advocates are worried about. However, he recognizes how important it is for farmers to know who they are doing business with.
“If you’re a small business owner or farmer, you want to spend your days growing your crops…not trying to keep up with 300 pages of new regulations. The result is that most of our employees are now forced to either hire a consulting firm or hire a labor contractor to take care of everything,” he said. “There is absolutely nothing wrong with that. It’s just a different way of doing it. And you need to make sure you’re thorough and fully vetting contractors on the front end.”
There is an open public comment period on both agency rules. Individuals and organizations may express their views on the Federal Register website (federalregister.gov) by clicking on “submit a formal comment” on the DOL and DHS proposal web pages.
©2023 The Atlanta Journal-Constitution. Visit ajc.com. Distributed by Tribune Content Agency, LLC.
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