Here is a thoughtful article written for human resource executives about the perils of the H-2B program – the guest worker program used for low wage workers. The article focuses on the problem of recruiting firms which mislead recruits in the developing countries in which they are recruiting. Thanks to Julie Ferguson for alerting me to this article, which was published in Human Resource Executive.
The article in full:
Guest Worker Woes
By Michael O'Brien
In the aftermath of Hurricane Katrina, about 500 guest workers were brought in from India to work for Signal International, a Mississippi-based marine oil-rig company, as it worked to repair hurricane-ravaged oil rigs.
Those workers likely had no idea that they'd someday end up in the middle of separate investigations by three federal agencies -- the U.S. Equal Employment Opportunity Commission and the Departments of Labor and Homeland Security -- as well as a federal court case involving allegations of labor abuse and human trafficking.
But, they probably should have, say immigration-law experts.
H2-B visas are used for skilled laborers, as opposed to highly skilled or professional workers (for whom the H1-B visa is used), as well as for temporary and seasonal workers.
Erin C. Hangartner, an attorney for Signal International, declined to comment for this story, citing the pending lawsuit. But a recent New York Times story highlights some of the allegations against Signal, the recruiting firms that found and hired the Indian workers on Signal's behalf, and U.S. Immigration and Customs Enforcement.
Some of the workers began protesting shortly after they arrived from India when they discovered that promises of green cards and future work opportunities in America were not likely to materialize, according to the Times.
When the company asked ICE officials for "direction" on how best to deal with the most vociferous protestors, the company received the following response from an unnamed immigration-enforcement officer, according to the newspaper account:
"Don't give them any advance notice. Take them all out of the line on the way to work; get their personal belongings; get them in a van, and get their tickets, and get them to the airport, and send them back to India."
When Signal's managers attempted to put that advice into action in March 2007, the workers clashed with the company's employees at the shipyard, where the Indian natives were living in a labor camp.
While the truth of the allegations will be hashed out in court, one independent research organization believes that case represents only the tip of the iceberg, when it comes to H-2B visa woes.
According to a new report from the Washington-based Center for Immigration Studies, Dirty Work: In-Sourcing American Jobs with H-2B Guestworkers , the popularity of the H-2B program soared, from just 15,706 visas in 1997 to an all-time high of 129,547 in 2007. (Issuances dropped to 44,847 in 2009, however, as Congress declined to renew a temporary expansion passed in 2005.)
Despite the global economic crisis, the report's author, Chicago-based CIS Fellow and retired Foreign Service officer David Seminara, says the demand for H-2B guest workers remains strong, even in areas with high unemployment rates.
"American companies filed petitions to request nearly 300,000 H-2B workers in [fiscal year] 2008," he says, adding that the U.S. Chamber of Commerce listed the expansion of the H-2B program as one of its "Policy Priorities for 2009."
While the program was originally intended to help employers needing seasonal and/or temporary workers, he says, "the majority of the program's current users are neither small nor seasonal employers, but rather mid- to large-sized companies and recruiters that petition for H-2Bs to work for 10 months out of the year, year after year."
He says businesses look for foreign workers to fill lower-tier jobs for two main reasons.
"Employers in the U.S. have some serious reservations about the pool of unemployed labor in this country," he says. "Depending on the industry, and what employers are looking for, certain employers harbor prejudices, in terms of workers' expectations on benefits and pay, as well as the American work ethic.
"Some employers look overseas and see a ripe opportunity to bring in workers who would bring a different attitude than a U.S. worker and perhaps less expectations," Seminara says.
Another reason, he says, is that such individuals have few rights.
"They don't have the right to change jobs," he says. "If you quit your job on an H-2B visa, the employer is required to report them to [the Department of] Homeland Security. Their status in the country is tied to the job, so they're pretty reliable, in terms of no sick days, no vacation days. If they do not work, then they lose their legal status in this country."
Exacerbating the problem, he says, is that the majority of the guest workers brought into the country do not speak any English, and the vast majority of them do not have a college or, even, a high-school education.
"These companies are recruiting people who are very susceptible to being tricked," he says. "They're not sophisticated people; they want to believe that they're going to get everything that they're being offered."
Sarah Hawk, chair of the Global Immigration Practice Group and a partner in the Atlanta office of Fisher & Phillips, says the allegations involving Signal offer a cautionary tale for businesses.
"The recent spotlight ... shows the potential flaws of the H-2B guest-worker system when there is a lack of oversight and good judgment regarding a company's policies, specifically when using recruiting firms and the subsequent potential for abuse by the system," she says.
However, Hawk says, H-2B programs can, in fact, offer companies a good vehicle for lower-skilled, temporary workers.
"Companies regularly use the H-2B for effective programs in the hospitality, manufacturing and tourism industries," she says. "They successfully stay within the parameters of the law, thus providing income to individuals who later depart the U.S. and return to their homes abroad -- often re-entering for temporary employment at a later time. Many workers from the Philippines work abroad and after the assignment, [they] return home to their families."
The key, Hawk says, is having strong oversight of labor-and-employment and immigration rules to prevent violations, as well as a strong selection process that requires recruiting companies to maintain humane and ethical treatment of foreign workers.
"Companies need to perform due diligence when considering using recruiting firms to hire temporary workers from other countries, including guest workers who are often misled or cajoled by the recruiting firms into paying for recruiting fees, legal fees and multiple expenses for the possibility of work in the U.S.," she says.
Companies should require recruiters to have written policies and procedures that comply with immigration and employment laws regarding hiring, termination, sponsorship of green-card policy, and details explaining the company's obligation of return transportation abroad, she says.
But Scott Cooper, managing partner of the Troy, Mich. law offices of Fragomen, Del Rey, Bernsen & Loewy, says it may take more than that to get recruiting firms on the same page as the U.S. employers.
"The recruiters and hiring agencies are indeed a very real problem," he says. "It is highly unlikely that [Signal International] would have led the workers into thinking that they were going to get green cards because these are clearly temporary positions ... and the wait for green cards for 'skilled' workers, such as sheet-metal guys, is worse than the currently projected 20-year wait for visas for bachelor-degree holders from India."
Cooper says he has seen similar situations occur at foreign agencies that recruit workers for hospitality positions or other unskilled or skilled positions.
"They don't necessarily promise green cards, but often make promises about other work after season, potential promotions and other conditions. They also do a poor job at pre-screening and obtaining documentation. They often try to do the visa work themselves, which can be ill-timed and rife with misrepresentations about job conditions," he says.
For the most part, says Hawk, "the H-2B program is a good program but could be strengthened by more oversight by the government, especially regarding the recruiting companies and the agreements companies make with the foreign national workers."
Seminara says most organizations rely on foreign recruiters "because, sometimes, the U.S. organization doesn't have the manpower to do it themselves, and other times, they do it so they can deny any [future] responsibility."
"You must be very hands-on and very involved," he says, "to make sure that, if you are using [foreign recruiters], that they are 'above reproach.' "
Instead of looking overseas, Seminara says, HR departments should consider widening their applicant searches to areas beyond the normal commute-time radius.
"If your immediate area doesn't have the workers you're looking for, your first inclination should not be to look overseas, especially at a time like this. You should look to expand your search regionally, as well as look to both available Americans and legal immigrants," he says.
The combination of a high U.S. unemployment rate as well as the negative publicity from the allegations involving Signal, could cause some employers to abandon their involvement with the H-2B visa program altogether, he says
"This should be a wonderful time for employers who are hiring," he says. "Fifteen million Americans are out there looking for jobs," he says."The more publicized the [H-2B visa] issue becomes, the harder it will be to defend it. And when the economy is this bad, a program like the H-2B visa program can be pretty toxic."
February 26, 2010