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April 2009, Volume 15, Number 2

H-2A Workers: Cases; H-2B

USCIS released nonimmigrant data for FY08, recording 173,100 H-2A admissions; 95 percent were Mexicans. USCIS data count events, not individuals, so the same individual can be admitted several times in one year. The number of H-2A admissions could be overstated for FY08; there were 87,300 H-2A admissions in FY07 and 46,400 in FY06.

DHS reported 110,000 H-2B admissions in FY08, down from 155,000 in FY07.

T&A. The 200 H-2A workers employed by Tanimura and Antle (T&A) for the November-March lettuce harvest around Yuma were profiled on January 24, 2009 in the Yuma Sun. Most were recruited by LaborMex in Ciudad Mante in the Mexican state of Tamaulipas.

While in the Yuma area, they live in two apartment complexes bought and refurbished by T&A in 2008, with strict rules governing noise, crowds and alcohol-- violators are fired and returned to Mexico. Some of the H-2A workers reported earning $350 to $400 a week at T&A, compared to $110 a week in Mexico.

T&A is the third largest producer of fresh vegetables such as lettuce, with 45,000 acres, including 2,000 acres of organic vegetables. T&A estimate that producing organics cost about 20 percent more due to extra hand weeding and record keeping.

SGLC. On February 6, 2009 a federal judge allowed 145 Mexican H-2A workers to sue farm labor contractor Salvador Gonzalez Farm Labor Contractor for violating minimum wage requirements. The workers, recruited in the Mexican state of Colima, were promised that they would earn at least $100 a day and that the work would last six months.

The workers said they paid recruitment, processing, visa, and administrative fees as well as transportation costs from their homes to California, arriving in June 2008 and expected to earn $100 a day for six months. They allege that since SGLC did not reimburse these fees, their earnings were below the minimum wage. The workers also allege that SLGC did not provide them with required meal and rest breaks.

Sheep. Some 1,500 H-2A workers tend sheep in the western states, with one shepherd caring for a flock of up to 2,000 sheep on land leased from the federal government. Campaigns to improve wages for H-2A shepherds focus on their $750 a month wages in Colorado and $650 a month in Wyoming. Farmers say that higher wages would accelerate the shrinking of the sheep industry.

Colorado Legal Services has begun to file complaints about the treatment of some H-2A sheepherders.

H-2B. DHS revised the H-2B program effective January 19, 2009, changing the definition of temporary to allow up to three years employment for a particular project, such as constructing a building. DHS announced a pilot program under which departing H-2B workers would report to DHS as they leave the US.

DHS delegated its power to enforce H-2B regulations to DOL, and limited recruitment of H-2B workers to 28 countries, including Mexico.

Up to 66,000 H-2B workers can be admitted each year to fill seasonal nonfarm jobs. Most H-2B workers are from Mexico and the Caribbean, and most fill jobs in farm-related industries, including gardening, landscaping and reforestry. Employers may apply for H-2B visas six months before they expect work to begin, and employers typically request more than the 33,000 visas available in April and October.

Between 2005 and 2007, the so-called Save Our Small and Seasonal Business Act allowed H-2B workers who had been in the US the year before to be rehired outside the quota. A bill introduced in February 2009 (S 388) would create an H-2R visa for experienced H-2B workers and keep them outside the 66,000 quota. Senator Barbara Mikulski (D-MD) has been the main sponsor of relaxing H-2B admissions at the behest of crab processors in Maryland.

Cases. There have been several cases involving recruiters who brought H-2B workers to work in the New Orleans area in the aftermath of Hurricane Katrina in September 2005.

H-2B workers hired to work at Decatur Hotels in 2006 sued because they paid $3,000 to $5,000 each to get jobs at Decatur for which they were not reimbursed, reducing their pay below the minimum wage. A federal district court agreed to certify their class-action suit, but the US Court of Appeals for the Fifth Circuit on February 11, 2009 dismissed it, concluding that Decatur had no obligation to take the immigration-related expenses of the H-2B workers into account in setting their wage rates (Castellanos-Contreras v. Decatur Hotels LLC).

DOL's H-2B regulations published December 18, 2008 make H-2B workers liable for their own relocation expenses, so "the FLSA does not obligate Decatur to reimburse the guest workers for their transportation expense."

Decatur obtained H-2B workers via Accent Personnel Services. Accent had a sister firm, VP Consultants, that earned a fee by informing recruiters of the vacancies at Decatur; the H-2B workers paid fees to these recruiters for the Decatur jobs. In Rivera v. Brickman Group, a court found that the employer was liable for recruitment fees because Brickman required H-2B workers to use a particular recruiter. Decatur did not specify a recruiter for H-2B workers to use, and thus was not liable for recruitment fees.

However, effective January 18, 2009, employers seeking certification to employ H-2B workers must attest that the employer has forbidden recruiters from charging fees to H-2B workers. The US Circuit Court noted that this regulation would likely prohibit fees such as those paid by Decatur H-2B workers in the future.

DOL on March 26, 2009 withdrew the preamble to the December 18, 2008 revised regulations that suggested that a 2002 case was wrong. In Arriaga v. Florida Pacific Farms LLC, the US 11th Circuit Court held that the inbound travel expenses of H-2A and H-2B workers were primarily for the benefit of employers and must be reimbursed if not doing so would reduce the guest workers' wages to below the minimum wage (H-2A regulations in this case required reimbursement of inbound travel expenses when the workers completed half of the season).

The owners of AMEB Business Group Inc, based in Brownsville, Texas, were convicted of selling H-2B visas to Indians for $20,000 each from April 2005 through June 2006; the workers were sent to Viscardi Industrial Services in New Iberia, Louisiana.

In another case involving 500 Indian H-2B workers suing their employer for violations of the Fair Labor Standards Act, a judge rejected Signal International's argument that Signal needed to know the workers' immigrant status in order to defend itself from their class action suit.

The workers allege that Signal, which provides construction services to the Gulf Coast oil and gas industry, violated the FLSA by deducting $1,000 a month for room and board. The judge agreed with the workers that Signal was trying to discover if they had remained illegally in the US, and said that their current status was not relevant to Signal's past FLSA violations for the time they worked at Signal.

Signal's recruiter Global Resources placed ads in India and the UAE promising green cards or immigrant visas for $20,000. Once in the US, the H-2B workers signed additional forms allowing more deductions from wages.

Dan Frosch, "In Loneliness, Immigrants Tend the Flock," New York Times, February 22, 2009. Cesar Neyoy, "Hundreds of temporary hires are new faces around town," Yuma Sun, January 24, 2009. Steve Evans, "A Better Labor Force," Western Fruit Grower, January 2009.

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