“H-2A Visa Program for Farmworkers Is Surging Under Trump — and So Are Labor Violations,” NBC News
The federal visa program for guest farmworkers, known as H-2A, has grown rapidly as the rural workforce has aged and as a crackdown against undocumented workers has intensified under President Donald Trump. Even as the White House has broadly restricted visas during the coronavirus pandemic, the administration has made exceptions for H-2A visas, deeming H-2A workers to be essential and calling the program "vital to maintaining and securing the country's critical food supply chain."
Federal laws are supposed to ensure decent working conditions, fair pay and safe housing for guest workers, who are tied to the employers who sponsor them and must return to their home countries after the short-term visas expire, as the program doesn’t provide a pathway to citizenship.
But as the H-2A program has expanded, it has left more guest workers vulnerable to abuse, an NBC News investigation has found. Over the course of six months, NBC News visited more than a dozen H-2A sites in Georgia and North Carolina; interviewed dozens of H-2A workers, labor advocates, industry leaders and former labor officials; and reviewed hundreds of pages of court documents.
Last year, the Labor Department closed 431 cases with confirmed H-2A violations — a 150 percent increase since 2014; the agency found about 12,000 violations under the program, with nearly 5,000 H-2A workers cheated out of their wages, according to federal data.
And those are only the documented problems. Workers are often reluctant to speak out against employers who are responsible for their housing, transportation and paychecks — and who control their ability to stay in the U.S. — workers and labor advocates say. The pandemic has created new hazards for these workers, who are transported together and often stay in cramped housing that their employers provide. COVID-19 outbreaks have infected farmworkers across the U.S., including large groups of H-2A workers in California, Washington and Michigan, according to health officials.
Labor advocates are especially alarmed about farmers' growing reliance on contractors like Sanchez. As pressure grows to cut costs amid falling crop prices and competition from foreign imports, more farmers are outsourcing the time-consuming job of hiring, transporting, housing and managing H-2A workers. Labor contractors can also shield farmers from liability, curtailing their legal responsibility for the workers picking their crops should something go wrong.
While some farm labor contractors are well-established professionals, others are tiny, fly-by-night operations that cut corners — middlemen sometimes known as “enganchadores,” a Spanish word referring to the practice of "hooking" workers to come to the U.S.
Although they are still a minority of the companies bringing H-2A workers to the U.S. — submitting 15 percent of the federally certified applications for workers in 2019 — labor contractors are more than twice as likely to be barred from the H-2A program for violating the rules compared to other H-2A employers, according to NBC News' analysis of federal data from 2016 to 2019.
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From his first days in office, Trump has made it a priority to impose draconian new restrictions on immigration — most recently freezing all new H-1B visas for skilled tech workers, among other groups. But the White House has made a rare exception for the H-2A program, which has no annual cap on visas.
One difference? The farmworker program has drawn deep support from major agricultural groups and Congressional Republicans in rural districts. The administration openly says that these foreign workers are different, because they are doing work that Americans don’t want to do.
“The President supports legal immigration, and the growth of the H-2A program to provide critical labor to America’s farmers and growers for jobs that have been fairly offered to American citizens and left unfilled,” the White House said in a statement.
Trump himself has vowed to make H-2A workers more readily available to American farmers.
“We’re going to have them coming into our country in an easier fashion than even before. It’s very important for our business, for our farms, for our ranches. And we are going to make that a very, very much easier, less cumbersome program,” Trump said in July 2019 upon signing an agreement with Guatemala to restrict asylum applications to the U.S. in exchange for greater access to H-2A visas. “All of those workers that come in, we want them to continue to come in.”
Last year, the Labor Department approved more than 257,000 positions for temporary foreign farmworkers through the H-2A program — more than twice as many as it had in 2014, according to federal data. "Most everybody is going to this as a last resort," said Chalmers Carr, a South Carolina peach farmer who is president of USA Farmers, a national advocacy group representing H-2A employers.
The Trump administration defended its oversight of the H-2A program, citing the Labor Department’s efforts to investigate violations and educate employers about the program’s requirements. In a statement, the agency stressed its commitment "to safeguard American jobs, to level the playing field for law-abiding employers, and to protect workers from being paid less than they are legally owed or otherwise working under substandard conditions.”
Industry leaders say the vast majority of employers abide by the rules, working hard to comply with the program's complex requirements and high labor costs. H-2A workers are currently required to earn more than the minimum wage in every state, and they are supposed to get free housing, transportation and food or access to cooking facilities.
"Generally, our growers want to do the right thing," said Charles Hall, executive director of the Georgia Fruit and Vegetable Growers Association. "As with any industry, when you've got a few bad apples, that always taints it."
But labor advocates like Goldstein believe that the fundamental design of the H-2A program leaves workers at risk of exploitation — and that the industry's shift to using contractors makes it even easier for abuses to fly under the radar.
"Farmers get a very, very productive workforce, because these workers are so vulnerable," Goldstein said. "They do what they say, and very few of them will speak up about unfair or illegal conditions, because they fear the consequences will be even worse if they do."
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A country built on guest workers
For more than a century, America has relied on temporary foreign laborers to plant and harvest its crops.
During World Wars I and II, labor shortages prompted the U.S. to open its doors to farmworkers from Mexico. The U.S. government gave assurances that the temporary workers would be treated fairly under the Bracero Program, named for the Spanish word for "farmhand." But oversight was minimal, and the program became notorious for brutal working and housing conditions, which contributed to its demise in 1964. By that point, Congress had established another pathway for temporary agricultural workers, which became the H-2A program in 1986.
For decades, the H-2A program remained relatively small. But over the past 10 years, demand for temporary farmworkers and ranch hands has taken off.
In 2011, Georgia passed a sweeping anti-immigration law requiring larger businesses to use E-Verify to vet new hires and imposing stiff fines and prison sentences for workers who used fake identification to get jobs. The law squeezed Georgia farmers, who had long depended on undocumented immigrants and domestic migrant workers to harvest blueberries, onions, peaches and other hand-picked crops.
Georgia is now a leading destination for H-2A farmworkers, along with Florida, North Carolina, California, Washington and Louisiana. Despite the president's executive order to "Hire American," even Trump's own vineyard in Virginia was certified to hire 23 H-2A workers last year. Industry lobbyists are pushing Congress and the Trump administration to extend the program to new kinds of agricultural workers and to make it cheaper and easier to use.
The program's growth has spawned a cottage industry of visa agents and growers associations to help farmers navigate the complex application process. But increasingly, farmers are turning to farm labor contractors like Sanchez to supply workers. Last year, the Labor Department certified 1,900 applications for H-2A workers from contractors — more than triple the number in 2014 — giving these contractors permission to bring more than 100,000 temporary farmworkers to the U.S., according to NBC News' analysis of federal data. Many contractors are former farmworkers themselves.
"In theory, having labor contractors organize workers is actually a good thing, because the contractor specializes in finding work for crews and lets workers get more hours," said Philip Martin, a labor economist at the University of California, Davis. But many of them compete by providing workers at rock-bottom prices, Martin said — creating an incentive to skimp on workers' paychecks and housing, given the lack of vigorous oversight. "The Department of Labor has not been good about throwing the bad ones out," he said.
In late 2017, Sanchez petitioned the Labor Department to bring 30 H-2A workers to Georgia to harvest pine straw, attesting that he had tried to recruit U.S. workers, as the program requires, but that none had applied for the jobs. He promised that the foreign laborers would be paid either $10.62 an hour — the minimum for H-2A workers in Georgia that year, based on a federal formula — or $1 per straw bale, hitting the same minimum hourly wage; they would be housed at a motel that had already passed government inspection, according to records obtained by NBC News.
Instead, workers said, they stayed for a week at a motel — sharing beds, with some forced to sleep on the floor — before Sanchez moved them to the decrepit house in Blackshear.
No one was likely to check up on Sanchez: Under federal law, housing needs to pass inspection only when an employer applies to bring H-2A workers to the U.S. After workers arrive — sometimes months later — no follow-ups are required.
Visiting more than a dozen H-2A sites in Georgia and North Carolina in November, NBC News found government-approved farmworker housing overrun with insects and spiders' nests, as well as cardboard covering broken windows. A dilapidated trailer in Georgia had gaping holes in the walls; feral cats had crawled into the kitchen cabinet, an H-2A worker documented in a video sent to Georgia Legal Services, an advocacy group that represents farmworkers. "Rats are better than us," the worker said in the video.
The Labor Department conducts unscheduled inspections of H-2A worksites across the country, including occasional investigations of housing; the agency's Wage and Hour division can issue monetary penalties, force employers to pay back wages, bar employers from the program and refer cases for prosecution. But resources for enforcement haven't kept pace with the program's rapid expansion: Wage and Hour staff has fallen by 19 percent since 2016, according to federal records. And even when employers are prohibited from hiring more H-2A workers, which is relatively infrequent, the bans are usually only temporary — between one and three years.
State oversight, too, is limited. Using federal grants, state agencies help H-2A employers comply with the program's requirements and carry out housing inspections required before workers move in. Despite the rapid growth of the H-2A program, federal funding to these state agencies hasn't increased, and some got less last year than they did three years earlier, according to records made public as part of a 2019 lawsuit against the Labor Department. Georgia's federal funding dropped by 15 percent, the state Labor Department confirmed.
Some states, like North Carolina and California, also have their own standards and inspection systems for farmworker housing, and they take action against H-2A employers who break the rules. But others, including Georgia, have few additional rules and limited enforcement authority.
Last year, the Trump administration acknowledged some of the "unsafe and unsanitary" conditions facing H-2A workers. In July 2019, the administration released a lengthy proposal that sought to improve housing standards and increase the bonds that contractors must obtain as proof that they can pay their workers.
But the administration's plan — which the Labor Department is slated to finalize next month — would also relax rules for employers who have complained that the H-2A program is too slow, expensive and cumbersome. State agencies would be allowed to conduct less frequent housing inspections by having employers certify themselves. Workers, meanwhile, would be responsible for more of their inbound travel expenses; some would be paid less under a new federal formula for calculating minimum H-2A wages, while others would be paid more.
Some lawmakers are trying to push the program in a new direction. Last year, the Democratic-controlled House passed a bipartisan farm labor bill that would include a pathway to citizenship for some undocumented immigrants and H-2A workers. The bill would also add 20,000 year-round H-2A visas, which are currently unlimited but only seasonal.
But the chances that Congress will pass any kind of immigration overhaul are slim, with a pandemic gripping the country and a presidential election only months away.
Meanwhile, the Trump administration has continued to keep the door open for H-2A workers, temporarily easing visa rules by allowing employers to hire guest workers more quickly and keep them in the U.S. longer. “The Trump administration is working to keep our farmers and growers competitive while ensuring that American workers have access to more opportunities and higher wages,” the White House said in a statement, adding that problems with H-2A workers’ health, safety, and employment “can be identified and resolved.”
Even as unemployment has climbed to the highest rate since the Great Depression, industry leaders say farmers are still scrambling to find enough workers to plant and harvest their crops — tough, manual labor that is usually in remote locations.
Labor advocates fear that America's faltering economy could put these guest workers at even greater risk. While demand for produce sold in grocery stores has remained high, the pandemic has dealt a major blow to many farms that supply restaurants, cafeterias and other institutions.
That has increased the pressure for growers who rely on the H-2A program to cut costs — and that could ultimately mean skimping on wages, housing and other labor expenses, said Michael Hancock, a lawyer with Cohen Milstein Sellers & Toll, a civil rights and employment law firm. Hancock was a Labor Department official in President Barack Obama's administration.
"Who are the most powerless people in this process, in the weakest negotiating and bargaining position?" Hancock said. "The workers."
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