Visas No Guarantee for Migrant Worker Rights in USA

Emilio Godoy

HAVANA TIMES, Oct 10 (IPS) — Mexican Alberto Rivero joined the ranks of seasonal workers in the United States in 2005, and for the last three years he has had to pay all the expenses associated with his visa, transportation and housing, although the law states that these are the responsibility of his U.S. employer.

“Last year I paid something like 800 dollars. With the first company where I worked, I didn’t have to pay anything,” he told IPS by phone. The 33-year-old works part of each year as a gardener in West Chester, in the northeastern U.S. state of Pennsylvania.

The Mexican recipients of the H2A and H2B visas, created by the U.S. government to regulate seasonal employment, often suffer abuse from their employers in activities that may even involve the crime of human trafficking.

South of the border, activists and experts alike charge that the Mexican government is failing to protect its migrant workers.

“The abuses occur through the recruiters. They are given hiring quotas and asked for visas and transport. The problem is that there aren’t any public regulations for the contracts or the hiring contractors,” Alejandra Ancheita, an attorney with the non-governmental Project for Economic, Social and Cultural Rights (ProDESC), told IPS.

In 1943, the United States instituted the H2 visas for foreign workers, and in the 1980s established the categories H2A for agricultural workers and H2B for other jobs, like gardening, construction and hotel housekeeping services.

A labor straightjacket

The recruiters have set up businesses in Mexico to attract workers from communities across the country. They connect the workers to employers in the United States, without any inspections from Mexico’s Labor Secretariat (ministry), in part because there is no bilateral agreement with the U.S. on the issue.

The visas end up as a labor straightjacket, because their holders can only work for the contracting company and only at a specific location. The programs rules stipulate that the employer must cover all expenses of the immigrant worker.

“If the employer doesn’t meet the legal obligations, the worker doesn’t have the option of going somewhere else to work, and is afraid of complaining because he or she could be fired and would be left without papers,” said Victoria Gavito, legal affairs director for the non-governmental Centre for Migrant Rights (CDM), in the central Mexican state of Zacatecas.

Every year, about 130,000 Mexicans enroll in the seasonal work program, according to data from the U.S. government and civil society groups. Most come from the central states of Guanajuato, San Luis Potosm, Jalisco and Zacatecas, and are sent principally to the states of Louisiana, North Carolina, Massachusetts, New York and Washington.

Organizations like ProDESC and CDM advise workers who have suffered abuse so that they might organize and bring their cases in Mexican courts. To that end, they have put together the “Manual of Binational Justice,” providing a legal framework for the defense of migrant workers whether in Mexico or the U.S.

Mexico’s Federal Labor Act establishes that the companies have to cover what the worker spends on paperwork and register the hiring contract with the Conciliation and Arbitration Council, the entity responsible for overseeing labor justice. But that obligation is rarely fulfilled, according to the migrant rights activists.

The Mexican government’s excuse for this failure is that it cannot intervene in what it says is an agreement between individuals.

“The government does not get involved nor does it want to know how these people are hired,” said Enrique Gonzalez, whose master’s thesis in international studies at the Autonomous National University of Mexico focuses on the H2 visa program.

In his field research, Gonzalez surveyed 867 households in the municipality of El Naranjo, in San Luis Potosm state, and found 24 people who were seasonal workers in the United States. Seventy percent of those workers said they themselves had paid for the visa and 92 percent paid for their transportation to the job location. Just 45 percent were reimbursed for those expenses.

ProDESC is advising two groups of seasonal workers who suffered abuses in Louisiana. One case involves 35 migrant workers from San Luis Potosm who worked in 2008 in strawberry fields. The bosses seized their passports, made them work in terrible conditions, and subjected them to physical and verbal mistreatment. The other case concerns 17 Mexicans who faced similar abuse.

The goal is to be able to sue the recruiters and employers in Mexican courts while lawsuits are also pursued in the United States.

“The government has the obligation to regulate these ties. But litigation is not going to resolve the deeper issue. We need to make the process of hiring and issuing visas transparent,” said ProDESC lawyer Ancheita.

This year the CDM, which is creating a database of the employers, has received three complaints of labor rights violations from workers building amusement parks in the U.S. states of North Carolina, Georgia and California.

“There has to be more oversight. This is a big opportunity to change the conditions in Mexico,” said Gavito, the CDM attorney who graduated from the private St. Mary’s University, in the U.S. border state of Texas.

Since March of this year, the H2 program has been operating under some changes, including written notice of the contract terms, the identification of foreign recruiters and their possible abuses, and of penalties for anomalies in the hiring process.

Before the current version of the visa program, the largest seasonal work agreement was known as “Bracero,” which operated from 1942 to 1964, through which thousands of Mexicans travelled north of the border to work in the fields.

The North American Free Trade Agreement (NAFTA), in force since 1994 between Canada, Mexico and United States, does not mention anything about seasonal work in the U.S., not even in its parallel labor agreement.

But Mexico does have a mechanism set up with Canada, the 1974 Seasonal Agricultural Workers Program, through which some 15,000 Mexicans head to Canada each year to work on farms, according to government figures.