Archivos: Press

Law firms of Emery Celli Brinckerhoff Abady Ward & Maazel, LLP and Benno & Associates say more than 20,000 individuals who submit valid claims could receive settlement payments of $10,000 or more; the window to submit claims runs from February 14 to May 15, 2025.

NEW YORK (February 18, 2025) – The law firms of Emery Celli Brinckerhoff Abady Ward & Maazel, LLP and Benno & Associates, P.C., announced today that the period for filing claims to receive a settlement payment as part of a class action lawsuit against New York City is now open and runs through May 15, 2025. The class action settlement of up to $92.5 million was reached in Onadia v. City of New York, resolving claims by individuals who were unlawfully detained by the NYC Department of Correction solely on the basis of a U.S. Department of Immigration and Customs Enforcement (ICE) immigration detainer between April 1, 1997 and December 21, 2012. The City of New York denies liability but agreed to establish the Class fund to compensate Class Members and pay attorneys’ fees and settlement costs.

Who is eligible to file a claim? The Settlement allows more than 20,000 Class Members detained beyond their scheduled release dates on the basis of ICE detainer requests to seek a Settlement award. Class members include individuals from Mexico, the Dominican Republic, Haiti, Jamaica, Ecuador, Cuba, Colombia, Trinidad and Tobago, Honduras, and Guyana. These individuals may or may not still be living in the United States.

How much money will class members receive? Depending on the length and date of their overdetention, Class Members may be eligible to receive awards of $10,000 or more.

How do individuals file a claim? If you believe you are in the Class of individuals covered by this Settlement, please visit https://www.NYCICEsettlement.com/. You may also call 1-800-479-0810 or email NYCICESettlement@AtticusAdmin.com.

What is an ICE detainer? ICE detainers are requests issued to state and local law enforcement agencies to hold an individual for up to 48 business hours beyond their scheduled release so ICE can take custody of the individual. In some cases, however, individuals were detained for days or weeks beyond that two-day period. Together, Class Members were detained more than 166,000 days beyond their scheduled release dates.

Do Class Members have to be living in the United States to file a claim? Any Class Member may file a claim regardless of where they are currently living. Lawyers in this case anticipate that a large percentage of Class Members may have repatriated to their countries of origin or left New York, which is why it is essential to spread the news of this settlement broadly.

“Our Constitution protects all human beings within the United States from detention without probable cause no matter their immigration status. This case teaches that those protections must be respected and that those who choose to ignore the Constitution will be brought to account,” said Matthew D. Brinckerhoff, partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP.

“We are asking for the help from the news media, community organizations, and individuals to share this information with anyone they know who may fit the description of a class member, so they can receive a settlement payment. The claims process is simple and may provide eligible class members with $10,000 or more,” said Debra L. Greenberger, partner at Emery Celli Brinckerhoff Abady Ward & Maazel LLP.

January 14, 2025

Occupational Safety and Health Administration

United States Department of Labor 

Submitted via regulations.gov

RE: Docket No. OSHA-2021-0009 Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings (RIN 1218-AD39)

1. Introduction

Centro de los Derechos del Migrante, Inc. (CDM) is a binational workers’ rights organization that supports migrant workers to defend their rights as they move between their home communities and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm workers in the temporary visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM convenes the Comité de Defensa del Migrante (Migrant Defense Committee), a group of current and former migrant workers. The Comité empowers and organizes migrant workers at work in the United States and in their home communities. The Comité strives to center migrant workers’ perspectives in conversations about policies that affect them.

CDM writes in support of the Occupational Health and Safety Agency’s proposed rule “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.”^[1]  Each year, heat exposure in the workplace causes hundreds of workers to experience illness, hospitalization or even death. Heat-related health effects are not limited to direct harm such as heat exhaustion or heat stroke, but also include injuries like falls from dizziness and exacerbation of kidney disease.

With average temperatures rising higher every year, addressing heat-related occupational hazards is increasingly urgent. Heat hazards disproportionately impact workers in low-wage industries like construction and agriculture, where migrant and immigrant workers make up a majority of the workforce and often lack adequate access to health care. We applaud OSHA’s work in developing and proposing this rule, which will help protect workers from deadly heat hazards once finalized and implemented.

II. Comments on the Proposed Rule

CDM joins in the coalition comment submitted by Farmworker Justice and Migrant Clinicians’ Network, and submits this supplemental comment to provide additional information about key proposals that are of particular interest to CDM and the migrant workers we work alongside.

In preparing this comment, CDM conducted a focus group and interviews with over a dozen current and former H-2A and H-2B workers, including several members of the Comité. The workers who contributed to this comment have worked both indoors and outdoors in various industries throughout the United States, and have direct experience with the hazards OSHA seeks to address in this rule. In light of this experience, the workers we spoke to were generally supportive of and optimistic about the proposed rule, and below provide several suggestions to strengthen it.

A. Paid worker participation in the development and implementation of Heat Injury and Illness Prevention Plans is critical to ensuring that heat safety planning effectively addresses workplace hazards.

OSHA seeks comments on whether the proposed requirement to seek worker input in the development of Heat Illness and Injury Protection Plans (HIIPPs) under paragraph (c)(6)^[2] is adequate.^[3] CDM and workers strongly support this proposal: as OSHA recognizes, workers are the most knowledgeable about workplace hazards, including those related to heat. To ensure meaningful participation, OSHA should require that time workers spend supporting the development and implementation of their employers’ HIIPPs be compensated. An H-2A worker from Texas explained: “it would be good to form groups, where workers could talk and make sure that the employer follows the rules, and workers’ time in these groups would be paid.”^[4] Workers also caution that without safeguards, workers may feel pressure to rubber-stamp employer proposals without truly shaping them. For example, an H-2A worker in Washington noted that his employer had made welcome efforts to seek input on worker safety issues, but that opportunities were missed when these efforts were rushed:

They’ll grab a tractor driver, a harvester, a crew leader to get together every now and then to improve the work conditions . . . These meetings are paid. But what I saw recently was that they don’t have a lot of time—because the employer doesn’t want to pay—so they don’t handle things as deeply as they should. I think that greater focus on this topic is required, because there could be many improvements.

CDM and workers appreciate that OSHA plans to allow employers and workers flexibility to decide what method of feedback works best for them. One of the ideas mentioned in OSHA’s proposed rule is to offer “anonymous suggestion boxes” to receive feedback, alongside more time-intensive methods like meetings or committees. ^[5]  This is a great idea to help maximize the number of workers who could provide input in the development and implementation of the safety plan. As a former H-2B carnival worker who worked various states said, “the more people who can participate, the better.” Workers must also be assured that they will not experience any retaliation for providing input on heat safety in the workplace—and OSHA must take swift and rigorous action in the event that retaliation occurs. As a former H-2A worker in New Mexico described:

I think it’s important that workers be aware that by sharing their opinion [with their employer] under the heat safety rule, this won’t adversely affect them or result in retaliation at their workplace. Freedom of expression shouldn’t affect their employment status, because this could prevent workers from giving input or getting involved in activities related to the HIIPP.^[6]

We also support proposed paragraph (c)(7), which would require employers to review and update their HIIPP plans at least annually, as well as after any significant heat-related injury or illness.  Workers underscore the importance of ensuring consistent worker participation in all aspects of the implementation of the HIIPP, and particularly in reviews after any workplace incidents or accidents, so we welcome OSHA’s proposal to require worker feedback in the review process as well.

Finally, OSHA seeks input on whether to define “employee representative” and, if so, whether non-union employees should be allowed to designate a non-employee third-party as their representative for the purpose of providing input on their employers’ HIIPPs.^[7] We urge OSHA to explicitly allow non-union employees to designate non-employee third-parties as their representatives if wish. Many low-wage workers face barriers to unionization, so many organize with local worker health and safety groups and worker centers, or seek support from other workers’ rights advocates to improve health and safety conditions at their workplaces. It is important to allow workers to involve these external advocates, if they so choose, to assist them in strengthening and implementing their safety plans.

B. Requiring employers to provide paid breaks in shaded, cooler areas with access to cool drinking water will make an important difference to workers’ safety in high heat environments.

CDM and the workers we collaborated with in the preparation of the comment welcome OSHA’s proposal, in paragraph (e)(6) to require employers to provide workers with a fifteen-minute paid rest break at least every two hours after the high heat trigger. This will make a critical difference to workers in high heat environments, and if properly implemented will represent a badly-needed change from the status quo. As a former H-2A worker explained:

I worked in Texas picking squash. I think it was hotter than 100 degrees. We didn’t have breaks, we didn’t have access to shade. We did bring water with us in the truck, but they didn’t give us time to drink it . . .  so we had to work until we were done with the harvest task we were assigned that day. We would go out to the ditches to drink water [out of view of the supervisors] because to the boss, that was money they were losing. So if this [rule] can apply, that would be a big help in situations of extreme heat like that.

The worker’s experience was echoed by that of another former H-2A worker in North Carolina:

Picking tobacco is really intense work. There are basically no breaks. We could only really drink water when we left the field, and that’s not even minutes—it’s seconds. You just drink water and go straight back to work.

Non-agricultural workers in high heat environments also suffer the consequences of denied breaks. A former H-2B carnival worker who has worked in more than 10 states described his experience:

In carnivals, in the summer months, there is no break. You have to work constantly no matter what the temperature. Once, I was working in Maryland in the summer on a really hot day, and a girl from South Africa [another H-2B worker] fainted. Sometimes we would get sick [from the heat], but we just had to take some medicine to try to get better.

In light of these experiences, we celebrate the proposed rest break provisions and provide the following suggestions to strengthen them.

i. To support successful implementation of rest break protections, OSHA must ensure that workers who are paid by the piece are not prejudiced by exercising their rights.

We appreciate OSHA’s attention to the heightened barriers workers who are paid by the piece face to taking rest breaks. Most workers who contributed to this comment were paid by the piece, and rest breaks in their workplaces are generally unpaid and rare. An H-2B crab worker in Maryland put it succinctly: “We don’t take breaks because we are paid by the pound.”

Consistent with the literature OSHA cites, piece-rate workers face two key disincentives to taking rest breaks: 1) they lose money; and 2) they risk being seen as less productive, which may result in adverse employment action in the future.^[8] The proposed rule takes important steps towards addressing the first of these disincentives through the proposed Formula for Heat-Related Rest Break Compensation of Piece-rate Employees.^[9] In response to OSHA’s request for input, we urge OSHA to make this calculation explicit in paragraph (j) of the final rule. We also call on OSHA to strengthen the rule by adding “plus total time for employee to walk to and from break area(s) and total time for employee to doff and don personal protective equipment before and after breaks” to “Total heat-related rest break time” in the formula as it is incorporated. Including this language in the rule itself would ensure that both employees and employers are clear that walking, donning, and doffing time are compensable, even though it is not counted toward rest period time. Finally, OSHA should make clear that the requirement to pay walking and donning and doffing time applies to “if-needed” rest breaks after the initial heat trigger as well.

OSHA acknowledges that workers’ concerns about not being seen as sufficiently productive may impede their ability to exercise their right to breaks. ^[10] This concern is grounded in real risk: CDM regularly hears from H-2 workers in piece-rate workplaces who are told that if they do not keep up with often-rigorous production metrics they may be sent home before the end of their contract or not hired back the following year. As such, we recommend OSHA strengthen the rule by adding safeguards against the risk of retaliation against workers who exercise their rights to if-needed or mandatory rest breaks. For example, OSHA could add a provision stating that employers may not implement productivity standards that directly or indirectly penalize workers for taking heat-related rest breaks, such as a weekly productivity standard that is not adjusted for any mandatory or if-needed rest breaks taken.

ii. OSHA should adopt a clearer standard for when rest breaks are required between the initial heat trigger and the high heat trigger.

While we appreciate the intention of OSHA’s proposed paragraph (e)(8), which would require employers to “allow and encourage employees to take paid rest breaks . . . if needed to prevent overheating” (emphasis added) between the initial heat trigger and the high heat trigger, we are concerned that this provision may not achieve its intended preventative impact. Employers are economically incentivized to consider these rest breaks not necessary: as the Texas H-2A worker described above, “to the boss, that [time workers were on break] was money they are losing.” And we have discussed, workers face several barriers to asserting that a rest break is needed. OSHA itself cites a tragic case where a farmworker died after declining a break on a day that “the heat index ranged from 86 to 112 °F.”^[11] As currently written, the proposed standard would only have mandated rest breaks during part of this day.

To ensure workers can take preventative rest breaks between the initial and high heat triggers, OSHA should consider requiring that workers be relieved of duty and encouraged to take a scheduled rest break of up to 15 minutes every two hours when the temperature is between the initial and high heat trigger, but allow workers to opt out or opt to take a shorter break if they desire. At the very least, OSHA should explicitly require employers to emphasize in the HIIPP and worker trainings that workers have the right to take paid rest breaks if they feel they need them after the initial heat trigger.

• For rest periods to have their intended impact, workers must have access to a cool, shaded space with access to cool drinking water.

CDM and workers welcome OSHA’s standards for break areas, described in paragraphs (e)(3) and (e)(4). In outdoor workspaces, the proposed rule would require that workers be provided with either a shaded break area that is open to the outside air, or an air-conditioned enclosed break area, such as a “trailer, vehicle, or structure.”^[12] OSHA seeks feedback on whether it has appropriately defined “shade” for the purpose of determining whether an adequate break area is provided.^[13] The proposed regulation defines “shade” as “the blockage of direct sunlight, such that objects do not cast a shadow in the area of blocked sunlight.”^[14] While we believe the proposed definition of “shade” is appropriate, we note that implementation of this requirement may not always be as straightforward as it seems. As an H-2A worker in Washington, where a state heat standard was recently implemented, explained:

Starting last year, [my employer] started to put up canopies for breaks. But, what I notice is that the canopy is very small. They tell us to put the water jug in the middle of the shade structure, but since the shade structure is very small, the sun often goes there . . .  Often, we’ll put the water in its place at the beginning of the shift, as we’re instructed, but by the time it gets to break time the water is in the sun. We are 15 people in my crew and we can all fit inside, but the problem is that the sun comes underneath. They give us training and everything but what good is it if by the time we get to have the break, the water is in the sun?

OSHA acknowledges a similar issue as it relates to natural shade, noting that “would need to consider the path of shade movement throughout the day to ensure adequate areas of [natural] shade are maintained.”^[15]  In light of these practical concerns, instead of modifying the definition of “shade,” OSHA should build in supports for implementation to this provision. For example, a former H-2B worker suggested that if a portable canopy is used, the employer should be required to assign an employee to move it as needed throughout the day. This could be a duty of the workplace safety coordinator, or it could be a required element of the HIIPP where employers are using portable shade structures.

CDM and workers additionally welcome the proposed requirement that any indoor or enclosed break spaces be air conditioned. The Texas H-2A worker quoted above explained that when he and his coworkers were given time to eat, they would do so in an indoor space without air conditioning, and as a result found it hard to meaningfully cool down.

Providing consistent access to cool drinking water during breaks will also make an important difference for workers, as would ensuring that cool drinking water is readily accessible during the work day, as proposed in paragraph (e)(2). In response to some of OSHA’s specific requests for feedback, we make the following recommendations to strengthen the protective impact of this provision.

• OSHA requests feedback on whether to require a “specific temperature or ranges of temperature for drinking water,” such as Colorado’s 60°F requirement.^[16] We believe the rule would be strengthened by doing this, as workers note that even where employers provide drinking water, they are consistently inattentive to keeping it cool. As the North Carolina H-2A worker who harvested tobacco explained, “the water coolers are in the trucks in the sun.” The Washington H-2A worker noted that, despite challenges with the water cooler staying shaded, at some worksites the employer put ice in the water coolers, which made a difference. As opposed to the subjective definition of “suitably cool,” a more objective compliance standard would reinforce that employers are responsible for ensuring that the drinking water provided is cool throughout the high temperature periods, not just at the start of the day.
• OSHA asks “[w]hether the agency should require the provision of electrolyte supplements/ solution in addition to water.”^[17] OSHA notes that electrolyte supplements can contain sugar and calories, and that they may not be necessary for all workers.^[18] Nevertheless, OSHA should require employers to provide access to electrolyte supplements in addition to water—individual workers are best positioned to weigh the benefit of rehydration against other nutritional considerations, and can always choose not to use them. Many workers in high heat workplaces feel obligated to purchase their own Gatorade or electrolyte solutions, finding them necessary to stay adequately hydrated. The former H-2B carnival worker who witnessed a coworker’s heat illness in Maryland explained: “When you are sweating a lot, water rehydrates you a little bit, but [my coworkers and I] would also have to buy electrolytes to get through the day. If you just drink water, you won’t get rehydrated enough. This would be my suggestion for OSHA.”

All in all, the proposed rest break and access to water provisions will represent an important improvement for workers.

C. OSHA must prioritize language access by ensuring that workers receive necessary safety plans and training in their own languages in order to create an informed workforce that can advocate for their heat protection rights.

CDM appreciates OSHA’s attention to language access. Many workers in high heat workplaces do not speak English fluently. For example, the 2021–2022 National Agricultural Workers Survey (NAWS) found that about two thirds of farmworkers did not speak or read English well or at all.^[19] Most farmworkers report that Spanish is the language in which they are most comfortable, with a growing minority preferring to speak Indigenous languages from Mexico and Central America, in addition to other languages.^[20] As such, information that is only provided in English is inaccessible to most farmworkers.

Current employer efforts are inadequate to inform workers of the risk of heat injury and illness and to protect workers from these risks. A former H-2B worker in Louisiana who contributed to this comment stated, “I didn’t know anything, I didn’t have any information about this. I didn’t know the difference between golpe de calor (heatstroke) and the normal heat that you feel.” The former H-2B carnival worker who witnessed a coworker’s heat injury in Maryland emphasized the need for this rule:

We’ve gotten information about work instructions in two languages—English and Spanish. But they don’t give us information about safety [in either language]—they’re interested in the rides getting built, but workers’ safety, they don’t pay much attention about that.”

Worker education is a key to ensuring that any worker protection is effective. Training workers on the risks of heat exposure, the HIIPP, and their rights to breaks and water will decrease workers’ risks from heat. However, only workers who understand the risks and their rights can protect themselves. Accordingly, CDM urges OSHA to commit to language access through the following actions:

i. Finalize paragraph (c)(9) (“The HIIPP must be available in a language each employee, supervisor, and heat safety coordinator understands”).

Workers must have a firm understanding of the HIIPP in order to benefit from it, and consistently communicate the need for language access in the context of heat stress. As such, CDM emphasizes the importance of including this provision in the final rule. An H-2B worker in the seafood industry in Maryland and Virginia explained:

We have not been given information about the heat. We have not been given information [about safety] in our language. We have never had someone speak to us. We cannot communicate with the boss. On the other hand, there are other people who are very close to the boss, who know how to speak English, but . . . it is necessary to have someone who speaks the language. It would be easier to communicate. I think it is more necessary in [agricultural work] because new people are always coming in. And it is important because the heat is very strong.

CDM answers OSHA’s question, “[w]hether it is reasonable to require the HIIPP be made available in a language that each employee, supervisor, and heat and safety coordinator understands,” in the affirmative. As OSHA notes in the preamble, “OSHA expects that an individual who speaks employees’ languages will be available in all workplaces since effective communication between individuals such as employers, supervisors, and employees would need to occur in order for employees to understand the details about the work tasks they need to complete.”^[21] While we generally agree, CDM notes that employers of workers who speak indigenous languages often require other workers to provide interpretation, as many companies who employ indigenous workers do not have supervisory staff who speak indigenous languages. To the extent employers rely on coworkers to interpret or translate HIIPPs for non-English or non-Spanish speaking workers, it is important that these coworkers be provided with additional paid training to ensure accurate interpretation. Further, for workers speaking a traditionally spoken language, it may be reasonable to make the HIIPP available orally and not in writing, but it is important to make the HIIPP available to all individuals in an appropriate form.

Finally, given the diversity of languages spoken at agricultural workplaces and the range of ability to understand spoken and written English and Spanish, worker involvement to identify languages spoken and communication needs of workers will thus be important to ensure that all workers receive the necessary information. OSHA should consider specifying that worker input on the HIIPP should include input on which languages it should be disseminated in, and whether translation or interpretation is the preferred method of dissemination.

ii. Clarify that employers with over ten employees must provide a translated version of the written plan in the text of the rule.

In the preamble, OSHA explains that “Paragraph (c)(9) would require the employer to ensure the HIIPP is available in a language each employee, supervisor, and heat safety coordinator understands. Under proposed paragraph (c)(4), this would require written translations of the plan in all languages that employees, supervisors, and heat safety coordinators understand.”^[22] CDM encourages OSHA to codify this provision in the actual text of the rule. Since paragraph (c)(9) (language access) applies to all employers, but paragraph (c)(4) (written HIIPP) applies only to employers with more than 10 employees, the rule as written may be misinterpreted to mean that all employers, large or small, can comply with the language access provisions by explaining the plan verbally, but do not need to have translated written plans. This can be easily addressed by incorporating the language above into the final rule.

CDM agrees with OSHA that employers of more than 10 employees should be required to provide translated written HIIPPs, at least for traditionally written languages like Spanish where this would be useful to most employees. In the case of traditionally oral languages, like many common Indigenous languages, OSHA might consider allowing employers to provide workers with video or audio recordings of verbal interpretations in lieu of a written translation.^[23]

iii. Emphasize access to the HIIPP for workers with low literacy levels.

CDM recognizes OSHA’s consideration of workers with low literacy levels in the preamble but urges OSHA to move these protections into the rule itself. Many workers in high heat workplaces have limited or no literacy, and Indigenous workers may face additional challenges where their first languages are mainly oral. OSHA recognizes literacy barriers in the preamble of the rule, stating, “If one or more employees are not literate, the employer would have to ensure that someone is available to read the written plan in a language that each employee understands.”^[24] This is an essential cornerstone of this plan for ensuring access for all workers. As a key part of ensuring access, particularly because workers with low literacy may be more vulnerable, this provision should be included in the text of the final rule.

iv. Finalize paragraph h(5) (“Training must be provided in a language and at a literacy level each employee, supervisor, and heat safety coordinator understands. The employer must provide employees with an opportunity for questions and answers about the training materials.”)

As the former New Mexico H-2A worker who contributed to this comment put it, “[i]t’s extremely important for both workers and employers to understand and have training on heat-related illness to know what to do in the event [of an incident]. ^[25] But this critical training will only have its intended effect if it is delivered in workers’ languages and at an appropriate level of literacy. Accordingly, CDM strongly supports the inclusion of the language in paragraph h(5), as well as complementary language proposed in  paragraph (h)(1), which states that “the employer must ensure that each employee receives training on, and understands, [the subjects of the training].” (Emphasis added).^[26] Workers can only understand the training’s content if it is imparted in a language in which they are comfortable.

v. Clarify that more time for training will be required if workers are translating the HIIPP and training materials for other workers, and that time dedicated to preparing to translate or interpret must also be compensated.

As emphasized above, successful trainings are key to the success of this rule. CDM applauds the inclusion of training in the rule, but notes that trainings without sufficient time allocated will ultimately fail to achieve much. This is especially true where employers expect workers or supervisors to translate or interpret trainings for other workers, as interpretation will necessarily add time.

In response to OSHA’s inquiry, “Whether individuals are available at workplaces to provide verbal translations of the plan for employees who are not literate or do not speak English,” CDM believes the answer is generally yes, but urges OSHA to include additional measures. Accurate interpretation requires a high level of skill and training. OSHA should consider requiring employers to provide professional interpretation services to ensure that all workers are trained on heat safety plans. To the extent OSHA considers this infeasible, such as for smaller employers, at a minimum, bilingual or trilingual workers who are interpreting trainings should receive a training themselves first before they are expected to train other workers on a training that they have not yet received. This will ensure that translating workers are able to accurately convey the training content.

CDM urges OSHA to emphasize the need for adequate time for trainings and for additional time if the employer is utilizing workers as translators or interpreters.

III. Conclusion

CDM applauds OSHA’s efforts to address a gap in the safety of workers in the United States. We appreciate the opportunity to provide comments, and urge OSHA to promptly implement these badly-needed protections.

Sincerely,

Centro de los Derechos del Migrante, Inc.

———————————————————-

[1] Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, 89 Fed. Reg. 70698, 70775 (proposed Aug. 30, 2024) (to be codified at 29 C.F.R. §§ 1910, 1915, 1917, 1918, 1926, and 1928) (“Heat Injury Prevention”).

[2] Unless otherwise noted, all paragraph references in this comment are to proposed 29 C.F.R. § 1910.148.

[3] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[4] CDM focus group with current and former H-2A workers, December 20, 2024. Except where noted, all worker quotes in this comment are from this focus group.

[5] Heat Injury Prevention, 89 Fed. Reg. at 70774.

[6] CDM interview with former H-2A worker who worked in New Mexico, January 6, 2025.

[7] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[8] See Heat Injury Prevention, 89 Fed. Reg. at 70788.

[9] Heat Injury Prevention, 89 Fed. Reg. at 70801.

[10] See, e.g. Heat Injury Prevention, 89 Fed. Reg. at 70800 (citing a study that found that piece-rate farmworkers feared “that they might be replaced by another employee if they took breaks”).

[11] Heat Injury Prevention, 80 Fed. Reg. at 70788.

[12] Proposed paragraph (e)(3).

[13] Heat Injury Prevention, 89 Fed. Reg. at 70781.

[14] Proposed paragraph (b).

[15] Heat Injury Prevention, 89 Fed. Reg. at 70780.

[16] Heat Injury Prevention, 89 Fed. Reg. at 70779.

[17] Id.

[18] Heat Injury Prevention, 89 Fed. Reg. at 71041.

[19] JBS Int’l, Findings from the National Agricultural Workers Survey (NAWS) 2021–2022 16 (Sept. 2023), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf.

[20]Id.; see also Isabel Gross, Indigenous Farmworkers Face Unique Barriers to Healthcare, Farmworker Justice.org (Apr. 26, 2021), https://www.farmworkerjustice.org/blog-post/indigenous-farmworkers-face-unique-barriers-to-healthcare/

[21] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[22] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[23] See Indigenous Languages, Indigenousfarmworkers.org, http://www.indigenousfarmworkers.org/indigenous_languages.shtml#Languages.

[24] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[25] CDM interview with former H-2A worker who worked in New Mexico, January 6, 2025.

[26] Heat Injury Prevention, 89 Fed. Reg. at 71071.

FOR IMMEDIATE RELEASE: June 20, 2024

Contact: Francisco Díaz Pinelo, francisco@cdmigrante.org 

Atlanta, Georgia. Today, two professionals from Mexico filed a class action lawsuit against GFA (GFA Alabama Inc.) and Hyundai Glovis (GLOVIS Georgia, LLC) for fraud and discrimination, among other claims. This is the sixth separate class action lawsuit filed in the last two years by Mexican engineers and skilled technicians—TN visa holders—across Georgia and Alabama alleging manufacturers lied to them and the U.S. government to employ them as manual laborers. 

The two plaintiffs in the class action lawsuit filed today claim GFA (GFA Alabama Inc.) and Hyundai Glovis (GLOVIS Georgia, LLC) discriminated against them and other workers based on their race, citizenship, and national origin, breached their employment contracts, failed to pay them legally required wages, and committed fraud and racketeering under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. 

Rosa Linda Soriano, one of the plaintiffs, brought additional individual claims alleging pregnancy discrimination and retaliation for requesting light duty to accommodate her pregnancy.

Centro de los Derechos del Migrante, Inc. (CDM); Radford Scott LLP; Beal, Sutherland, Berlin & Brown, LLC and Hall & Lampros, LLP represent the TN migrant workers who filed the lawsuit in the United States Northern District of Georgia, Atlanta Division.

The lawsuit claims that hundreds of TN workers were recruited in Mexico to work in the United States with promises of professional-level employment with GFA, including in the Hyundai-Kia supply chain, but instead were obligated to perform grueling manual labor. Workers in the GFA case allege that not only were they paid less than their non-Mexican, non-Hispanic coworkers for performing similar jobs, they were also assigned longer hours and more grueling tasks, and forbidden from speaking Spanish in the workplace. 

The TN visa allows professionals from Mexico and Canada entry into the United States for a period of time “to engage in business activities at a professional level.” The suit alleges that the defendant companies conspired to defraud Mexican workers and the federal government by taking advantage of the under-regulated TN visa program to satisfy their need for low-wage labor. 

In her employment at Hyundai Glovis’s West Point, GA warehouse, Rosa Linda Soriano also claims that GFA and Hyundai Glovis refused to modify her workload and responsibilities to accommodate her pregnancy, and ultimately fired her for requesting these accommodations.

“This case provides another clear example of how unscrupulous employers throughout the Hyundai and Kia supply chain and beyond are turning to the obscure and under-regulated TN visa category to fill low-wage, entry-level positions, defrauding employees and the US government in the process. We are proud to stand with workers in their fight against abusive employers and the misuse of the TN visa category.” – Rachel Micah-Jones, founder and Executive Director of Centro de los Derechos del Migrante.

“The fraud the workers allege in these cases was not just against themselves and the government. It was also against the people of Georgia and Alabama who gave large tax breaks to some of the companies locate their plants and warehouses here. It is appalling that companies taking advantage of these tax breaks do not treat workers—whether local or from abroad—with the dignity and honesty they deserve.” – Daniel Werner, Partner with Radford Scott, LLP (Decatur, GA).

“Our clients are coming here with the intention of utilizing hard-earned engineering degrees, yet when they arrive, they’re tasked with manual labor and face unsafe working conditions that American workers alongside them do not endure. We are committed to holding these auto suppliers accountable and putting a stop to this deplorable practice to ensure all workers get the opportunities they are promised and deserve.” Rachel Berlin Benjamin, Partner at Beal Sutherland Berlin & Brown. 

New York – FIFA should immediately release and commit to implementing the robust Human Rights Framework for the 2026 Men’s Soccer World Cup, which it developed through extensive consultations with civil society stakeholders and public officials from across North America. The framework, which FIFA shared with host cities in March 2024, will govern labor and human rights for all 16 North American host cities.

FIFA should now make the framework public for all stakeholders without any dilution or further delay. FIFA’s continued delay in a public release of the framework raises alarm bells, especially as the work of planning and delivering the World Cup is well underway without those human rights guardrails in place. The Dignity 2026 Coalition calls on the FIFA officials convening on May 17 in Bangkok for the 74th Congress to rectify this critical human rights deficit in FIFA policy.

In early May, FIFA president Gianni Infantino traveled to Washington, D.C., to press the United States to expedite visas for fans. FIFA expects the US to implement many other government guarantees, including massive tax waivers and blanket exemptions from labor law.

“FIFA will need the buy-in of workers, communities, and elected officials for a successful tournament, and that will not happen unless FIFA keeps its promises on human rights,” said Cathy Feingold, director of the AFL-CIO’s International Department. “In light of its financial, operational, and legal demands on host governments, FIFA’s delays and silence on its human rights strategy are particularly glaring.”

The members of Dignity 2026—an alliance of organizations representing millions of civil society stakeholders in the US that works in close partnership with coalitions in Canada and Mexico—have strong concerns about the delay and the status of the concrete human rights standards that Dignity 2026 has advocated for with FIFA, host cities, and the US government. Several of the founding organizations of Dignity 2026, including Human Rights Watch and the AFL-CIO, had worked with the North American Bid Committee in 2018 to shape strong human rights language. Civil society support for the hosting of the 2026 World Cup in North America was premised on these commitments.

“Sports uplift the values of fair play and competition. International competitions like FIFA’s World Cup draw attention to equity, not just through play but by valuing fairness and an equal application of the rules, including the economics of sport,” said Jamal Watkins, Senior Vice President of Strategy and Advancement for the NAACP. “There are NAACP units in each of the 11 US host cities, and we want FIFA to know that we are watching. Through our close relationships, from Seattle to Miami, we are very familiar with the standards and tools in the framework that FIFA shared with host cities in March. We expect that document to be released at once.”

In 2010, FIFA awarded the 2022 World Cup to Qatar without any conditions on human rights protections, despite the country’s poor human rights record and massive infrastructure deficit. FIFA’s decision drew widespread criticism for the need to construct eight stadiums in dangerous heat and the lack of human and labor rights protections in place.

“In view of migrant worker deaths, discrimination against LGBT people, and other abuses at past World Cups, workers, local communities, and rights defenders deserve more than empty promises from FIFA,” said Minky Worden, director of global initiatives at Human Rights Watch. “FIFA needs a concrete, published, and enforceable plan to protect labor and human rights around the 2026 World Cup.”

The Dignity Coalition is concerned that pressure from business partners and future World Cup host countries may account for FIFA’s stalling on human rights. In July, FIFA is expected to confirm that the 2030 World Cup will take place in Morocco, Portugal, and Spain, and that Saudi Arabia will host the 2034 World Cup, raising concerns globally about FIFA’s commitment to human and labor rights.

“FIFA has a chance to remake the world of sport into one that champions fundamental rights and principles on occupational health and safety, worker organizing, gender equality, forced labor, and more,” said Luc Triangle, general secretary of the International Trade Union Confederation. “But it will lose all credibility if it abandons or dilutes concrete standards and implementation criteria that were developed with unions, fans, and human rights organizations.”

About the Dignity 2026 coalition

The Dignity 2026 Coalition brings together 13 national-level human rights groups, labor unions and worker center networks, athletes’ organizations, fans, and migrant rights groups to ensure that the 2026 FIFA World Cup protects affected communities and advances their interests. Member organizations include the AFL-CIO, The Army of Survivors, Athlete Ally, Centro de los Derechos del Migrante (CDM), Global Labor Justice, Grassroots Law & Organizing for Workers (GLOW), Georgetown University Law Center (Harrison Institute), Human Rights Watch, Independent Supporters Council, Jobs with Justice, the NAACP, PowerSwitch Action, and the Sport & Rights Alliance.

FOR IMMEDIATE RELEASE: Apr 26, 2024
Contact: Francisco Díaz, Communications and Media Relations Lead at Centro de los Derechos del Migrante (francisco@cdmigrante.org)

Baltimore, Maryland. Today, the U.S. The Department of Labor (DOL) published its final rule to improve protections for workers in temporary agricultural employment in the United States through the H-2A guestworker program.

Centro de los Derechos del Migrante, Inc (CDM) welcomes this victory and applauds DOL’s efforts to strengthen protections for migrant agricultural workers. The final rule includes worker protections that migrant workers, CDM, and allied workers’ rights organizations have long fought for. Key wins include protections against retaliation, increased protection from termination without just cause, the right for workers to have guests in their housing, enhanced recruitment transparency, and protections against trafficking, such as prohibiting employers from withholding workers’ passports and visas to limit their mobility.

CDM also celebrates the provisions guaranteeing access to seat belts and safe transportation.

“For too long, large agricultural corporations have exploited gaps in worker protections to harm migrant workers. DOL’s final rule provides needed worker protections and reflects workers’ voices, experiences, and courageous advocacy.This rule will go a long way toward ensuring workers’ rights to health, safety, collective action, and justice. CDM celebrates this victory for migrant workers and organizations like ours who have advocated for these changes to the deeply flawed H-2A program for decades.” – Rachel Micah-Jones, Founder and Executive Director del Centro de los Derechos del Migrante.

“These protections benefit all workers. They are long awaited and very necessary. I hope they improve working conditions for migrant workers. Sometimes migrant workers don’t raise their voices for fear of losing their jobs. Being protected against retaliation benefits us. It will create safer workplaces. I hope these changes help people lose their fear to defend their rights” – Eleazar Guevara, former H-2A worker and member of the Comité de Defensa del Migrante (Migrant Defense Committee)

“My employer forbade all socialization. Having someone visit me in my housing would’ve been great. Someone to listen to me, check on me and someone to confide what was happening to me.”- Carlos, former H-2A worker.

A few data points from CDM’s Ripe for Reform report on the H-2A program:

• 100% percent of workers interviewed faced at least one serious violation of their rights.
• 94% experienced 3 or more
• 46% five or more
• 26% said paid recruitment fees
• 34% experienced restrictions of mobility
• 45% experienced overcrowded and/or unsanitary housing conditions

Centro de los Derechos del Migrante, Inc. CDM partners with migrant workers to build worker power, advocate for fairer labor migration policies, and ensure that borders are not a barrier to justice.

February 4, 2024

This weekend, FIFA released the much-anticipated match schedule for the 2026 Men’s World Cup, which will be held across 16 cities in the United States, Mexico, and Canada. As planning accelerates in these host cities, event organizers will now be making critical decisions on tournament operations, including for Fan Fests, transportation, concessions, and hospitality. In the months ahead, FIFA, its business partners, and host cities must work collectively with civil society and other stakeholders to ensure a successful tournament – one that leaves an enduring, positive legacy not only for the North American hosts of FWC2026, but also future host cities and countries. Critical to that legacy is respecting the human rights and dignity of millions of World Cup stakeholders, from the fans to the athletes, to the residents of the host cities and the workers who make the tournament possible. 

The Dignity 2026 coalition is looking to FIFA to demonstrate a commitment to the same human rights standards that it is demanding from host cities and their partners, including around the principles of transparency and accountability. We celebrated when, in 2018, the bid for hosting the 2026 tournament became the first time that FIFA included human rights criteria in the selection process for hosting the World Cup. We have also been encouraged by FIFA’s openness to engaging with Dignity 2026 to identify human rights risks and set benchmarks for improving standards, and we welcome the decision to award the final match to New York/New Jersey. Now, even as planning for 2026 advances, we are closely watching for FIFA to build on the human rights legacy in North America toward future Men’s and Women’s World Cups, especially those in the process of site selection for the 2030 and 2034 tournaments. In that spirit, we urge FIFA to make transparent its due diligence process for making key decisions, including the process of selecting host cities and countries and the extent to which human rights standards were explicitly considered. The due diligence processes for 2026 should be the floor, not the ceiling.  

Working together now and through 2026, FIFA, host cities, business partners, and civil society stakeholders have a timely and historic opportunity to adopt a proactive and collaborative approach for human and labor rights, including embedding human rights into business practices and robust stakeholder engagement. Dignity 2026 is committed to working with event organizers to mitigate the risk of abuses before they happen. If done right, we can guarantee an enduring human rights legacy for future mega-sporting events beyond 2026. 

About Dignity 2026

Dignity 2026 is a diverse coalition of civil society organizations with a long history of advocating for strong human rights standards in both the World Cup and in the cities that will be hosting the 2026 tournament. We represent the labor movement, community and economic justice campaigns, civil rights groups, sports equity activists, migrant rights organizations, LGBTQ+ rights groups, soccer fans’ networks, and more. 

For press inquiries, please contact: 

Lstrieb@aflcio.org

press@athleteally.org

WL46@law.georgetown.edu 

January 27, 2024

Submitted through: https://www.regulations.gov/commenton/DOS-2023-0025-0001

Re: Exchange Visitor Program–Au Pair, Doc. No. DOS-2023-0025-0001, 88 Fed. Reg. 74071,  RIN 1400–AF12 (October 29, 2023)

Dear Director Ward:

Centro de los Derechos de Migrante, Inc. (CDM) writes to provide input on the Department of State’s proposed rules for the au pair program. While we applaud the Department’s clarification of the applicability of state and local minimum wage and overtime protections and efforts to better protect au pairs through increased transparency, the rule will fall short of its goals without improved enforcement mechanisms. Worse, it threatens to harm au pairs by depriving them of other key protections currently available under state and local labor laws.

Centro de los Derechos del Migrante is a founding member of Migration that Works, which will submit a separate comment on the proposed rules. CDM endorses all recommendations made in the Migration that Works comment. We submit this supplementary comment to provide additional information on our priority issues, highlighting the perspectives of former J-1 au pairs.

• Our Organization

Founded in 2005, Centro de los Derechos del Migrante (CDM) supports Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm people in the J-1 and other temporary work visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM also provides direct legal services and operates an intake line offering information, resources, and referrals to migrant workers in the United States, including J-1 au pairs. 

• Comments on the Proposed Rule

CDM’s comments below draw on our years of experience working alongside J-1 au pairs as legal advocates and counselors, extensive participatory research we have conducted with au pairs, as well as in-depth interviews with two former J-1 au pairs specifically focused on this rulemaking. A central theme we have heard from au pairs over the years is that work, rather than cultural exchange, is the fundamental component of the J-1 au pair experience. One former au pair who contributed to this comment explained: 

Agencies lie to us in our home countries. The agency tells you that you’re going to enjoy a cultural experience, that you will have a cultural exchange with a family, and that the family will adopt part of your culture and you part of theirs. The au pair arrives at a complete disadvantage . . . you have to work more hours than the contract says . . . and the pay is 3 or 4 dollars per hour, you have to work for literally two weeks to be able to pay for the cost of a medical appointment. I wanted to attend English classes and [my host family] never helped me get to school. So in reality, I was never able to go to classes because I didn’t have access [to transportation] to leave the house. 

Another former au pair who contributed to the comment described her disillusionment at coming to the United States expecting to participate in a well-monitored cultural exchange program, only to find that she was expected to work long hours and was not supported in her educational goals: 

Honestly, I had great expectations for the [au pair] program, because it seemed to offer security, that the families would follow certain rules . . . but it was totally different . . .  I was required to clean, in my free hours I had to clean bathrooms or clean the house, something I had thought the program wasn’t for. I was also required to work a lot at night and on the weekends–even though I was supposed to have two free weekends per month, I always worked on weekends. The family wouldn’t pay for my English classes.

While our comments below focus on specific elements of the proposed rules, at a broader level, we urge the Department to acknowledge the reality of au pairs’ experiences and to recognize that conceiving of the program as solely a cultural exchange program puts au pairs at great risk of abuse. 

• Host Family Agreement.

CDM joins Migration that Works in supporting the intentions of the Department’s proposed regulations addressing the Host Family Agreement, which aim to improve transparency and alignment of expectations between au pairs, host families, and sponsor agencies. We particularly applaud the following provisions, which address recurring concerns we hear about from au pairs:

• Duties. While ostensibly already prohibited, it is common for host families to require au pairs to do general cleaning and other tasks outside the parameters of the childcare duties they were recruited for. As an au pair who contributed to Shortchanged, a report on the J-1 au pair program CDM co-authored in 2018, described: 

They were expecting me to work as a maid. I worked with them for more than fifty hours. Even when they were home I was still working. They wanted me to do a lot of home services; I ended up cleaning the house alone. 

More clearly defining permissible and non-permissible duties will help improve alignment of expectations between au pairs and host families. 

• Weekly schedule; Weekends; Hours of child care. As the au pairs described above, and CDM has repeatedly heard from au pairs who contact us on our intake line, it is extremely common for host families to require au pairs to work more than the hours they were promised, without any overtime pay. Au pairs also report substantial schedule instability, often being required to work during hours that were originally designated as time off. As one au pair who helped CDM prepare this comment described:

The family wouldn’t count the hours in which I [was required] to clean, and counting the cleaning hours I think I worked about 60 hours per week. I always worked extra hours, and I was never paid for the extra hours.

Designating and disclosing a work schedule in the Host Family Agreement, requiring advance notice of when weekend work will be required, and clarifying the maximum permissible hours per week are important incremental steps toward addressing the harm caused by this uncertainty and overwork.

Other aspects of proposed rules governing the Host Family Agreement, while well-intentioned, fail to address some of the most insidious abuse in the au pair program. For example, while we support the transparency goals of the Fees provision, it is not enough to merely require sponsor agencies to disclose all the fees they intend to charge or have charged au pairs. Instead, to meaningfully protect au pairs the Department must actually limit the fees sponsors and their third parties can charge workers, including recruitment fees as described in greater detail in the Migration that Works comment. As described in Shortchanged, it is common for au pair sponsor agencies and their agents to charge workers exorbitant recruitment fees. Workers often go into debt to be able to cover these fees, and may feel pressured to remain in abusive employment situations because of this debt. 

Likewise, while we appreciate the Deductions provision’s clarification of the permissible amount host families may deduct from au pairs’ wages for room and board, this provision misses key opportunities to better address abusive practices in the au pair program. As described in the Migration that Works comment, the Department should set minimum standards for what room and board includes and should set a cap on permissible deductions for incidentals. CDM has repeatedly encountered au pairs who have been provided inadequate food or living accommodations. For example, one au pair who helped prepare this comment described:

When I arrived, the family I worked for at first didn’t give me the type of food that would be necessary for any other person; instead they just gave me something very basic, without fruits or vegetables or anything like that.

However, most crucially, even the most well-crafted provisions of the Host Family Agreement rules are unlikely to achieve their intended effect because the agreement lacks sufficient enforcement mechanisms. The Department states that it “relies on sponsor organizations to work with involved parties to reach a resolution” when employment-related disputes arise. The experience of the many au pairs CDM has worked with over the years demonstrates that this reliance is deeply misguided. As a former au pair described:

This agency only recruits girls to use and exploit. If the family treats you badly, they don’t care. They don’t support you. The local coordinators support the family at all times. The au pair is alone. She doesn’t have anyone’s support. It’s a scam.

Indeed, one former au pair who experienced sexual harassment and other severe abuse at work told CDM that when she approached the agency for help: 

They didn’t help me at all, I was totally unsatisfied by their response. I ended up with trauma, it’s less frequent now but before I would wake up every night crying . . . when I complained to the agency by phone, they didn’t do anything. I called the county and someone from the county came and took notes . . . the agency told me it was the first time it happened, but I don’t think that’s true. In the group of au pairs I was in, it was something that happened all the time.

This type of experience is echoed by the majority of au pairs who contact CDM seeking help–most of them have attempted to resolve their issues with their sponsor agency and gotten nowhere. At best, some sponsor agencies have allowed workers who experienced severe abuses to rematch, with no support for healing from their trauma or recourse to make them whole; at worst, sponsor agencies have retaliated against workers who have sought help by terminating their programs following a labor dispute with the host family the sponsor failed to resolve. 

The au pairs who contributed to this comment called on the Department to strengthen its oversight mechanisms from the J-1 program by ensuring that government regulators play a stronger role in ensuring host family and sponsor agency compliance: 

There should be a regulatory entity of the government that can corroborate that the program is being carried out according to the established guidelines. Right now, the regulator is the company in charge of the program, that’s who’s the mediator between the families and the often. Most of the time, they’re not impartial mediators. 

Another worker offered a similar suggestion:

There should be someone [au pairs can contact] in case of emergency, the opportunity to speak with someone who really is willing to help the au pairs. Usually, [sponsor agency staff] just take the side of the families.

As described in the Migration that Works comment, the Department should clarify that the Host Agreement is a contract containing legally enforceable rights. Additionally, the Department must create mechanisms to regularly audit sponsors’ enforcement of host agreements and for au pairs to complain directly to the government about violations and initiate government-led investigation and resolution processes carried out in coordination with the Department of Labor.

Finally, the Department should add language making clear that sponsors must provide au pairs copies of the Host Family Agreements in their first languages, as well as any amendments. As one au pair who helped CDM prepare these comments explained:

I didn’t fully understand the rules. I would say that this should be translated into Spanish or the au pair’s language, so that au pairs can be aware of what the rules are.

• Wages.

CDM fully supports the intention of the Department’s proposed changes related to wages. We endorse the Migration that Works comment’s suggestions to strengthen these proposals and ensure they achieve their goals, and applaud the Department for recognizing the importance of these long-overdue updates and clarification of the applicability of state and local minimum wages and overtime protections to au pairs.

• Preemption.

CDM echoes Migration that Works’s serious concern about the proposed rule’s attempt to deprive au pairs of all state and local labor protections that the Department may determine pose an obstacle to the realization of the objectives of the au pair program. CDM has worked with many au pairs who worked in jurisdictions that provide workplace protections that go above and beyond federal protections not just related to minimum compensation and overtime but also including paid sick time, workers’ compensation insurance, meal and rest breaks, protections against discrimination, and protections against trafficking and retaliation. Courts have repeatedly found that au pairs are domestic workers protected by these state and local labor standards. 

As the Migration that Works comment describes in greater detail, even where the proposed rule purports to replace state or labor law protections with comparable benefits, the fact that it contains no real enforcement mechanisms may result in au pairs being stripped of much-needed protections. We ask the Department to reconsider these sections, and to recognize that federal law should create a floor for minimum labor protections, not a ceiling.

• Conclusion

We appreciate the Department’s efforts to address au pair compensation and transparency, and urge you to use this opportunity to ensure au pairs have access to meaningful labor protections. In the words of one of the former au pairs who helped CDM create this comment:

Firstly, I would suggest that the program speaks honestly about what the program is about. What it really consists of. You’re coming as a nanny, not as an exchange student, which is what they sell you. There should also be some government entity that regulates the program and that can see whether the program rules are really being followed. 

Thank you for your attention to these issues and the opportunity to provide input.

Sincerely,

Centro de los Derechos del Migrante, Inc.

Atlanta, GA – Migrant workers with TN visas met today with representatives from the U.S. Department of Labor and the Mexican Consulate in Atlanta to ask for justice and strengthened labor protections for migrant professionals working in the United States with TN visas. The gathering was part of The Future of [Guest]work: Building TN Worker Power, a three-day summit convened by Migration that Works (MTW) that brought together TN workers and worker advocates to develop an advocacy agenda centered around workers’ experiences and priorities.

During today’s event, workers shared their experiences working with TN visas in the United States as well as the advocacy priorities they identified, alongside worker advocates, during the summit. TN workers demanded more oversight and visibility to the abuses committed within this little-known and sparsely-regulated visa category, emphasizing the importance of ensuring TN workers’ access to justice, increasing data transparency, and eliminating unjust clauses that inevitably tie workers to abusive employers.

“I was offered an engineering position, but I was put to work as a “picker”, carrying heavy autoparts. Job, pay, housing, transportation: nothing was like they said. When I became pregnant, and I couldn’t carry heavy objects anymore, my employer fired me. I speak out today to share my story in the hope that others won’t have to go through what I went through” shared Rosalinda Soriano, one of the TN workers who participated in the summit and spoke during today’s event.

The TN visa was created in 1994, following the enactment of the North American Free Trade Agreement, allowing Mexican and Canadian professionals to work temporarily in the United States within specified industries, such as automotive and animal husbandry. However, as the number of visas issued has increased by almost 250% in the past decade (from 9,548 in 2013 to 33,361 in 2022), so has the misuse of the visa by employers.

Rachel Micah-Jones, Executive Director of Centro de los Derechos del Migrante, commented on the outcomes of the summit, “All of us at CDM believe that laws and policies must reflect the voices and experiences of the people directly impacted by them. And this is precisely what this summit was all about: shaping a shared vision of the future and developing an advocacy agenda informed by the needs and priorities of migrant TN workers. The priorities identified by workers through conversations at the summit were data transparency, access to justice, and the elimination of breach fees. These will be our priorities moving forward.”

Migration that Works (MTW) members have documented systematic abuses of TN workers for years. A report “Coerced Under NAFTA” by Centro de los Derechos del Migrante, MTW chair, highlights the visa’s structural flaws and most common abuses faced by migrant TN workers. They have also filed complaints on behalf of workers who’ve suffered gender and racial discrimination, wage theft, and blatant retaliation. In 2022 CDM filed a class action lawsuit on behalf of a group of Mexican engineers who suffered fraud, discrimination, and wage violations and were exploited in a scheme for low-wage labor in Hyundai and Kia’s automotive supply chain in Georgia.

Polaris, another MTW member organization, through its work on the National Human Trafficking Hotline (NHTH) has indicators that this visa has been misused by some employers in the United States, who have been exploiting people under the pretext of needing a professional workforce. The NHTH has identified at least 50 situations of trafficking that referenced the TN visa between 2015 and 2021.

Claudia Cruz, Polaris Liaison in Mexico mentioned, “What we ask of the U.S. government is collaborative effort so that working individuals have resources, information, and justice. Having access to information available from government agencies is crucial in case individuals face any issues with their employers.”

According to NHTH data, Texas, Alabama, California, and Iowa are the most mentioned states when it comes to the states where the abuse took place. The three main categories of businesses mentioned in these situations of trafficking are: 1) Professional//Scientific/Tech Services, 2) Agriculture/Farms/Animal Husbandry, 3) Manufacturing/Factories.

AFL-CIO’s Chris Daniel, Strategic Organizer & Trainer from Georgia, shared at the event: “We need to get disaggregated information about the program: where the workers are and which companies they are working with. We think that when workers are empowered, communities do better, the world does better. So what we would like to see is workers come together and then grow their movement out.”

You can find the complete TN worker statement here.

For media inquiries and further information, please contact Francisco Díaz at francisco@cdmigrante.org

###

Migration that Works is a coalition of labor, migration, civil rights, anti-trafficking organizations and academics advancing a labor migration model that respects the human rights of workers, families and communities and reflects their voices and experiences.

Centro de los Derechos del Migrante, Inc (CDM) envisions a world where migrant workers’ rights are respected, and laws and policies reflect their voices. Through education, outreach, and leadership development; intake, evaluation, and referral services; litigation support and direct representation; and policy advocacy; CDM empowers Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States. www.cdmigrante.org

Polaris is leading a survivor-centered, justice- and equity-driven movement to end human trafficking. Since 2007, Polaris has operated the U.S. National Human Trafficking Hotline, connecting victims and survivors to support and services, and helping communities hold traffickers accountable. Through that work, Polaris has built the largest known dataset on human trafficking in North America. The data and expertise gained from two decades of working on trafficking situations in real time informs strategies that hold traffickers accountable, support survivors on their healing journeys and address the vulnerabilities that enable the business of stealing freedom for profit.

AFL-CIO is the largest federation of unions in the U.S., with 60 unions representing more than 12.5 million workers across every sector of the economy. It is dedicated to improving the lives of working families, bringing fairness and dignity to the workplace, and securing social equity.

November 20, 2023

Submitted through: https://www.regulations.gov/commenton/USCIS-2023-0012-0001

To: Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security

Re: Modernizing H-2 Program Requirements, Oversight, and Worker Protections, Doc. No. USCIS-2023-0012-0001, 88 Fed. Reg. 65040 (September 20, 2023)

Dear Secretary Mayorkas and Chief Nimick:

Centro de los Derechos de Migrante, Inc. (CDM) writes in support of key changes in the Department of Homeland Security’s proposed rule “Modernizing H-2 Program Requirements, Oversight, and Worker Protections.” The proposed rule would strengthen worker protections in the H-2 programs, reflecting longstanding policy recommendations from workers and advocates. 

Centro de los Derechos del Migrante is a founding member of Migration that Works, which has submitted a separate comment in support of the proposed rules, and joins a coalition comment of worker advocates supporting the proposed rules. CDM endorses all recommendations made in the Migration that Works comment. We submit this supplementary comment to provide additional information about the importance of key proposals and suggestions for strengthening them, highlighting the perspectives of former H-2 workers. 

• Our Organization

Founded in 2005, Centro de los Derechos del Migrante (CDM) supports Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm people in the H-2A and other temporary work visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM also co-founded and chairs Migration that Works, a coalition of labor, migration, civil rights, and anti-trafficking organizations and academics advancing a labor migration model that respects the human rights of workers, families, and communities.

In addition to providing legal support to Mexico-based migrant workers, worker engagement and leadership development are central to CDM’s mission. Since 2006, CDM has convened the Comité de Defensa del Migrante (Migrant Defense Committee, or “Comité”), a group of current and former migrant workers in the H-2 and other programs. The Comité works to empower and organize migrant workers at work in the United States and in their home communities, to create a culture of informed migration, and to center migrant workers’ perspectives in conversations about policies that affect them. Working in partnership with the Comité and other worker leaders, CDM conducts extensive outreach in H-2A and H-2B workers’ home communities and regions of employment each year, building relationships that guide our policy priorities.

• Comments on the Proposed Rule

In preparing the comments below, CDM conducted focus groups and interviews with over 25 current and former H-2 workers and other members of H-2 sending communities with experience in temporary work programs in the United States, including members of the Comité. The workers who contributed to these comments generally expressed optimism about the proposed changes’ impact on the H-2 programs and identified several opportunities for the Department to further strengthen the regulations to better protect workers. 

This comment does not address all aspects of the proposed changes that are relevant to CDM’s work, as CDM adopts the Migration that Works comment which is broader in scope. Instead, we highlight key proposals that are of particular interest to CDM and the migrant workers we work alongside. In addition, we call on the Department to avoid missing the opportunity to implement protective measures against discrimination, which is pervasive in the H-2 programs.

• Grace periods for workers whose employment is terminated before their contract ends or who otherwise leave their employment (proposed 8 CFR 214.2(h)(11)(iv)), 214.2 (h)(13)(i)(C)). 

CDM strongly supports the proposed rules’ creation of grace periods allowing H-2 workers to remain in the country without losing status after their employer’s petition is revoked, after being terminated, or after any other cessation of employment before the end of the H-2 contract period. For the reasons described in the Migration that Works comment, establishing grace periods is essential to allowing H-2 workers sufficient time to respond to the unexpected loss of employment by seeking new H-2 employment, exploring their legal options, or organizing their departure from the United States.

While all the H-2 workers CDM spoke with in the preparation of this comment were in favor of the creation of a grace period like the one proposed, they overwhelmingly identified a critical limitation of this proposal: during the grace periods, workers would not have access to work authorization or any other source of support. An H-2B worker in Maryland’s crab industry asked:

How am I going to support myself during the 60 days? How can I support myself if I don’t have a work permit? Even if I find a new employer, how am I going to support myself during that period [before starting the new job]? Where am I going to live? . . . I think there needs to be some sort of economic support for food, housing.

The process of finding a new H-2 job, applying for it, and traveling to it will likely be lengthy even in the best-case scenario following a sudden end to employment with one H-2 worker, and H-2 workers and their families are highly unlikely to have savings they can fall back on during the time between jobs. Another H-2B worker explained:

The grace period seems really good to me because it gives you the opportunity to figure out what to do and get organized. It would be important to have a work permit with this immediately because the time it takes to find a new employer will make [using the grace period] difficult.

The proposed portability provisions will not adequately address this issue because they would only allow workers to start new employment in the same visa category, severely limiting their options. The high prevalence of blacklisting in the H-2 programs will make the search for a new H-2 job especially onerous, causing further delays. As a former H-2 worker explained:

All of the [H-2] bosses communicate with each other, so how are you going to find work with another employer? Sometimes, they even lie, because if they’re unhappy with you they want to bury you–they don’t let you work with any other company. Since [portability] is only available for H-2 jobs, I think it will be difficult to use.

A former H-2B worker in the carnival industry echoed this sentiment:

If they’re giving me the benefit of staying [during the grace period], but I can’t work any job except in the visa category I’m in, and if in the area where I work all of the bosses communicate with each other, it’s going to be really hard.

Providing temporary, unrestricted work authorization for the duration of the grace period is critically important to make it a real option for workers to quit an abusive H-2 job and find a new one. We understand that the Department has identified potential operational challenges to allowing interim authorization. We strongly urge the Department to prioritize overcoming these challenges, as access to unrestricted interim work authorization is critical to making it feasible for H-2 workers to take advantage of the proposed grace period. The Migration that Works comment describes one possible solution; we ask that the Department carefully consider it and not lose this opportunity to more meaningfully improve flexibility for H-2 workers. Creating this flexibility would be consistent with section 214(c)(1) of the Immigration and Nationality Act (INA), as well as with the Department’s broad authority to define the time periods and conditions of any nonimmigrant’s admission to the United States under section 214(a)(1) of the INA.  As described in greater detail in the Migration that Works comment, the Department already issues guidance to H-2A employers who are eligible to take advantage of the limited portability provisions in the current regulations indicating that “[t]he employee’s unexpired Form I-94 indicating his or her H-2A status” qualifies as acceptable proof of employment authorization, demonstrating that the administrative challenges the Department identifies are surmountable. 

Finally, in addition to granting H-2 workers work authorization during the grace period, the Department should also use this rulemaking to clarify that otherwise eligible workers can qualify for unemployment benefits during the grace period. Moreover, the grace period proposal would better serve its intended purpose of “alleviat[ing] some fears held by H-2 workers who are facing abusive employment situations . . . but are reluctant to leave such employment” if it were a minimum of 90 days long, with extensions available for injured workers, and if workers had access to more than one grace period in a single period of admission. The rationale for these recommendations is described in detail in the Migration that Works comment.

• Permanent portability (proposed 8 CFR 214.2(h)(2)(i)(I)), 274a.12 (b)(21)). 

We welcome the proposal to allow all H-2 workers to begin work with a new H-2 employer as soon as that employer files a petition on their behalf. With greater flexibility, workers who face abuses in the workplace or who are unjustly fired would have a better chance of finding alternative employment, reducing their risk. We urge the Department to finalize this proposal and  also implement the opportunities to strengthen this provision described in the Migration that Works comment:

• Permit H-2 workers to change their program category from H-2A to H-2B and vice versa.
• Provide I-129 petition information to H-2 beneficiaries and create mechanisms for workers to verify their own immigration status.
• Work with the Department of Labor and State Workforce Agencies to improve the availability of job search resources. 

The latter is especially critical. While the portability and grace period provisions would represent an improvement over the current status quo, they will make little difference to H-2 workers who are unable to directly connect with alternative employers to find new H-2 employment. As another former H-2A worker who worked in Florida put it, “How will you [as an H-2A worker] find another company if you don’t know where to go for work? Especially if it’s your first time coming [to the United States for H-2A work], and the ranches are isolated, how are you going to find another contract?” 

To make portability benefits real, workers identified the crucial need for the Department, in coordination with the Department of Labor (DOL) and other relevant agencies, to ensure that H-2 workers are aware of existing opportunities. An H-2B worker in Maryland’s crab industry explained, “Since I don’t know many employers, [the Department] should facilitate access to  information about where other H-2B companies are so that I can look for jobs with those employers.” Another former H-2A worker emphasized this need, explaining that “whether a worker leaves work on their own or they’re fired, they are disoriented.” Accordingly, the H-2A worker emphasized that workers need information about grace periods and portability, and resources to locate alternative H-2 employment, from the beginning of their H-2 employment in the United States. This way, the former H-2A worker continued: 

If I see something wrong, before telling the employer [and exposing myself to retaliation], I can look for other options, other [H-2] companies to go work at. If I don’t have this information, [the grace period and portability] are not going to serve me, because I’m not going to know where to go.

The worker went on to recommend that employers and the government provide all H-2 workers written documentation describing their rights to grace periods and portability at the beginning of H-2 employment, which includes information on how to access job search resources, like a list of H-2 employers or jobs. As discussed in greater detail in the Migration that Works comment, such a list could be made available and accessible to workers through enhancements to the SeasonalJobs.dol.gov portal and collaborative work with DOL to open state workforce agencies’ job services to H-2 workers seeking alternative employment. A former H-2B worker describes how a platform like this should work:

The government should make an application . . . where employers’ information is available, where I can look for another [H-2B] job in another state that’s relevant to what I know how to do. I should be able to apply for the new job [from my current place of H-2 employment] and send all of my information to [the potential new employer] to see if they are interested in having me work for them. 

In addition to providing workers with real-time access to accurate information about available job opportunities, the Department should also implement mechanisms to facilitate direct communication between workers and their employers during the recruitment process, during the pendency of their employment with their petitioning employer, and when workers are porting from one job to another. This could be accomplished through the enhancement of Seasonal Jobs, or another platform, and would be an important step towards a just recruitment model through which workers would be able to connect directly with vetted, legitimate employers through a multilingual and accessible government database of verified job offers. 

Finally, in addition to information about job search resources, we underscore the Migration that Works comment’s call for the Department to develop a multi-pronged communications strategy to ensure that workers are aware of the changes once implemented, especially the changes regarding grace periods and portability. The Department must ensure that all H-2 workers are aware of their ability to remain in the United States for 60 days following the unexpected end of their H-2 employment and of the resources available to seek new H-2 employment in furtherance of the proposed portability provisions, and should partner with other relevant agencies and community partners to achieve this goal. 

• Improved petitioner accountability for recruitment and other prohibited fees. 

CDM strongly supports the Department’s efforts to more effectively enforce the prohibitions on these recruitment and other unlawful fees that H-2 petitioners and their agents charge workers. A former H-2A worker in the orange harvest explained the importance of these provisions in the context of recruitment fees:

I think that if [the Department] manages to do something for people who are being charged a lot of money, it would have a big impact and be a big help, because . . . to be paying [recruiters] who sometimes charge $2,000, $3,000, or even $4000 . . . we’re working just to pay down our debt. To have some justice, the impact would be good.

• Clarifications to the definition of prohibited fees.

As described in the Migration that Works comment, we welcome the proposed clarifications to the definition of prohibited fees, especially the clarification that “prohibited fees include any fees or penalties charged to workers who do not complete their contracts.” As the Department recognizes, imposing or threatening breach of contract fees and other severe non-monetary penalties on H-2 workers who leave employment before the scheduled conclusion of the work contract is a highly coercive practice that furthers exploitation and labor trafficking in the H-2 programs.  A former H-2A worker who worked in Florida described his experience: 

In my community, there are not many recruiters, so you have to take what you can get if you want to work and have opportunity. I was charged 30,000 pesos [roughly $1,700 in 2023 dollars] for the visa, payable to the recruiter. The recruiter took all this money and said that if we didn’t pay, he wouldn’t take us to work. This is how it works not only in our town. [At the H-2A workplace] there were people from other states who, once we were already in the United States, told me that they weren’t able to get the 30,000 pesos together so they gave the recruiters deeds to their land or papers for their car.

When [other H-2A applicants and I] went to the recruiter’s house, he held a videoconference with the employer. The employer was watching the interview and listening to what one of the recruiters asked . . . After the employer selected us, the recruiter made us sign a promissory note for 200,000 pesos [over $11,000 in 2023], which was his to keep. And he clearly told us that he would keep it until we completed the contract and returned to Mexico; then we could go to him and ask him to destroy the note . . . Before you go to the United States, the recruiter tells you, “Never say that I charged you,” or “Don’t talk about money.” This is a threat.

But [after arriving at the H-2A workplace], I began to think that the employer did know about the money the recruiter had charged, and the promissory note he had required us to sign, because that’s the only way [the employer] could have had us working in that way, without ever leaving, in the conditions that they dictated. Only with the fear of the promissory note would they be able to retain us in a business like that. Someone who had felt free to leave would have left without thinking about it. But people wouldn’t leave because they were trapped. It was my first time [in H-2A employment] but other workers who had had different contracts before said it was the worst place they had ever worked. [But] we couldn’t leave because the owner of the company would say, “If someone escapes from here, I will personally file a report with the consulate that you have escaped.” For that reason, I never wanted to go anywhere –that and the promissory note.

In light of the severe harm that breach fees and other penalties for early termination of H-2 work causes workers, we strongly encourage the Department to adopt the additional language proposed in the Migration that Works comment to explicitly address non-monetary penalties and penalties imposed on workers’ relatives and other community members.

• Due diligence measures employers should take to prevent prohibited fees.

We welcome the Department’s proposal to increase H-2 petitioners’ accountability for prohibited fees charged by their employees and agents. The workers who participated in the preparation of this comment overwhelmingly supported the Department’s clarification and “emphas[is] that it is a petitioner’s responsibility to conduct due diligence” to ensure that recruiters and other agents in its labor supply chain are not charging prohibited fees, even where employers are not in contractual privity with recruiters who are working on their behalf and where recruiters are located entirely out of the United States. Workers were generally optimistic that these provisions would cause employers to be “more careful in the recruitment process,” both with regards to fees charged by third-party recruiters and fees charged by their own employees. 

CDM endorses all of the Migration that Works recommendations provided in response to the Department’s request for comments regarding the types of due diligence efforts H-2 employers should be required to undertake and document. These recommendations include:

• Create mechanisms to directly communicate with workers during the recruitment process and promptly investigate any reports of prohibited fees. 
• Take immediate remedial action in the event the petitioner discovers that a recruiter or other agent has charged or entered into an agreement to charge a prohibited fee. 
• Implement rigorous vetting and monitoring procedures.
• Ensure that all agreements with recruiters provide for a realistic fee structure that will not incentivize recruiters to pass on costs to workers to remain profitable.

The first recommendation is especially critical for these proposed changes to truly benefit workers. To reasonably detect prohibited fees charged during the recruitment process, H-2 employers must establish channels for direct communication with workers and procedures for promptly addressing any abuses the workers report. Workers also emphasize the need for support from the Department and other relevant agencies to facilitate this communication. A member of CDM’s Comité de Defensa del Migrante explains, “The government should have a mechanism that ensures that a worker can directly tell [an employer about recruitment abuses] because otherwise employers wash their hands and say ‘I didn’t know.’” Moreover, the government needs to ensure that employers are accountable for taking immediate action when they learn of abuses in their recruitment chain. As the former H-2A worker who spent several seasons in North Carolina explained, “A problem I see is that when one, as a worker, complains to an employer about a recruiter’s bad treatment, the employer doesn’t take the worker seriously . . . they don’t properly investigate the situation.”  

In the long run, workers emphasize the need to move towards a just recruitment model through which workers would be able to connect directly with vetted, legitimate employers through a multilingual and accessible government database of verified job offers. As a member of the Comité de Defensa del Migrante describes: 

The government should create a platform or application that explains the necessary steps to take, where I as a worker can register to be able to apply for work through that application. Through this application, we can do away with recruiters. I wouldn’t have to pay a recruiter if through this application I can sign up [for H-2A work] myself, the employer can select me through the application, and the government can monitor the process. This way, recruitment fees would be eliminated. 

The workers CDM spoke to in the preparation of this comment were overwhelmingly in support of the creation of a platform like the one described above and identified the potential of this idea to uphold program integrity and facilitate the Department’s more efficient enforcement of the H-2 program rules–in addition to making the proposed portability provisions real as described above. Ultimately, we urge the Department to make every effort possible to move towards a just model of H-2 recruitment by giving workers more information and control over the process. As a former Florida H-2A worker described: 

What workers seek is trust, or the possibility of trust, in the person who offers them work . . . There should be a process by which a worker can have confidence [in an H-2A job opportunity]. For me, that would mean that the worker can verify the type of work, the salary, the housing, and everything that comes with that job. So that we aren’t made to feel inferior, because we need to be able to travel to work with confidence. That’s why we go – to work hard, to contribute, and to be able to go home. Not to be mistreated or cheated out of our money.

• Better program integrity through improved enforcement mechanisms. 

CDM welcomes proposed 8 C.F.R. § 214.2(h)(10), which would improve DHS’s ability to hold H-2 employers accountable for violations of the H-2 rules and related worker protection and immigration laws. These measures would help curb unscrupulous employers’ abuse of the H-2 programs, reducing the risks faced by workers. We also welcome the proposed specification that all mandatory and discretionary bars apply to successors in interest, and we welcome the Department’s clarification of that term, which is crucial to ensure the bars’ effectiveness. 

At the same time, we call on the Department to work to minimize inadvertent harm that an abusive employer’s exclusion would have on workers by creating mechanisms for former employees of a petitioner who has been barred from the H-2 programs to connect directly with alternative H-2 employers. In some H-2 sending communities, there are a limited number of recruiters and employers, and workers face the difficult choice between accepting an abusive H-2 job or no job at all. In such communities, an abusive employer’s exclusion from the program could result in a loss of economic opportunities for workers who might have chosen to accept the job out of economic necessity. This underscores the necessity for the Department to work to create a direct recruitment database as described in the prior sections, which would enable previous employees of an H-2 employer who is subject to a bar to find and apply for alternative H-2 employment.

We join Migration that Works in urging the Department not to reduce the proposed timeframes for bars to approval, but instead strengthen them by permanently banning employers who repeatedly commit offenses subject to mandatory denial from the H-2 programs, as they have demonstrated their inability or unwillingness to comply with the programs’ requirements. We also endorse the Migration that Works recommendation not to limit the discretionary bars to approval provision to a three-year lookback period, as this limitation is unnecessary given that recency is already a factor USCIS is instructed to consider. 

• Anti-discrimination protections.

Discrimination is rampant in the H-2 programs. H-2 employers and recruiters routinely violate laws prohibiting discrimination in hiring and employment based on race, age, sex, and national origin. For example, H-2 employers and recruiters post job advertisements hiring “men only” or male workers who are “19 to 49” years old. Once in the United States, women workers frequently experience sexual harassment and other discrimination.  The United States fails to adequately enforce protections against discrimination, creating perverse incentives for H-2 employers to bypass available U.S. workers and suppress wages and labor standards. 

A former H-2B worker and H-2A applicant who filed a petition challenging gender discrimination in the H-2 programs under the United States-Mexico-Canada Agreement describes the way this unchecked discrimination plays out in her community:

I have tried to apply for H-2A jobs and I have continued facing discrimination. Over the last year, I have come across many H-2A job ads on social media. But [each time], I realized very quickly that I am not eligible: they are exclusively hiring men.

In April 2021, I saw a Facebook ad for farm work in the United States with an H-2A visa. The ad mentioned they were only hiring men. Since I have pressing economic needs, I still decided to submit an application. I filled out the application online that explicitly asked about my gender. I did not receive a response for months. In September, I realized the people hired for that particular job were about to travel to the United States. The group was composed exclusively of men.

Since [2021], I have seen hundreds of men—both from my community and from neighboring ones—travel to work in the United States with H-2A visas. However, I have not seen a single woman afforded the same opportunity.

To help address discrimination in the H-2 programs, the Department should hold H-2 employers accountable for discrimination in recruitment enacted by their employees and agents, in a manner analogous to the proposal to increase H-2 petitioners’ accountability for prohibited fees charged by their employees and agents. The Department should also work with the DOL and other relevant agencies to improve remedies for H-2 workers and applicants who face discrimination. Currently, enforcing Title VII and many other discrimination laws requires workers to exhaust their administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) and obtaining a notice of a right to sue. But the EEOC’s charge filing system is largely inaccessible to H-2 workers: the EEOC’s Charge of Discrimination form is only available in English, the EEOC does not accept charges by phone, and the EEOC’s online portal to receive complaints is inaccessible from outside the United States. To address these inadequacies, and in light of the particular ways that discrimination is enacted in the H-2 programs, the Department should create independent anti-discrimination protections for H-2 workers that are enforceable by the DOL and by private right of action. 

• Conclusion

Centro de los Derechos del Migrante applauds the Department for its efforts to strengthen protections for workers in the H-2 temporary visa programs. The proposed changes address some of the fundamental flaws in the H-2 programs and should be implemented without delay. We urge the Department to additionally adopt the changes we have recommended, which align with its statutory mandate and policy goals.

Sincerely,

Centro de los Derechos del Migrante, Inc.

Doc. No. ETA-2023-0003 Improving Protections for Workers in Temporary Agricultural Employment in the United States

November 14, 2023

Dear Acting Secretary Su:

Centro de los Derechos de Migrante, Inc. (CDM) supports the changes in the Department of Labor’s proposed rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The proposed changes would strengthen worker protections in the H-2A program, reflecting policy recommendations that workers and advocates have made for decades.

Centro de los Derechos del Migrante co-signs the coalition comment submitted by Farmworker Justice, and we endorse all recommendations made in that comment. We submit this supplementary comment to provide additional information about the importance of key proposals and suggestions for strengthening them, highlighting the perspectives of former H-2A workers.

I. Our Organization

Founded in 2005, Centro de los Derechos del Migrante (CDM) supports Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm people in the H-2A and other temporary work visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM also co-founded and chairs Migration that Works, a coalition of labor, migration, civil rights, and anti-trafficking organizations and academics advancing a labor migration model that respects the human rights of workers, families, and communities.¹

In addition to providing legal support to Mexico-based migrant workers, worker engagement and leadership development are central to CDM’s mission. Since 2006, CDM has convened the Comité de Defensa del Migrante (Migrant Defense Committee, or “Comité”), a group of current and former migrant workers in the H-2A and other programs. The Comité works to empower and organize migrant workers at work in the United States and in their home communities, to create a culture of informed migration, and to center migrant workers’ perspectives in conversations about policies that affect them. Working in partnership with the Comité and other worker leaders, CDM conducts extensive outreach in H-2A and H-2B workers’ home communities and regions of employment each year, building relationships that guide our policy priorities.

II. Comments on the Proposed Rule
In preparing the comments below, CDM conducted focus groups and interviews with over 25 current and former H-2A workers and other members of H-2A sending communities with experience in temporary work programs in the United States, including members of the Comité de Defensa del Migrante. The workers who contributed to these comments generally expressed optimism about the proposed changes’ impact on the H-2A program and identified several opportunities for the Department to further strengthen the regulations to better protect workers.

This comment does not address all aspects of the proposed changes that are relevant to CDM’s work, as CDM joins the coalition comment submitted by Farmworker Justice which is more comprehensive in scope. Instead, we wish to highlight three key areas of the proposed changes that are of particular interest to CDM and the migrant workers we work alongside. In addition, we call on the Department to avoid missing the opportunity to implement protective measures against discrimination, which is pervasive in the H-2A program.

1. Enhancing recruitment transparency in the H-2A temporary work visa program.

CDM supports the Department’s efforts to enhance transparency in H-2A worker recruitment.² We encourage the Department to take the additional measures detailed in Farmworker Justice’s comment to ensure that workers have meaningful access to the information they need to safely search for and accept H-2A employment. A former Florida H-2A worker described:

What workers seek is trust, or the possibility of trust, in the person who offers them work. . . There should be a process by which a worker can have confidence [in an H-2A job opportunity]. For me, that would mean that the worker can verify the type of work, the salary, the housing, and everything that comes with that job. So that we aren’t made to feel inferior, because we need to be able to travel to work with confidence. That’s why we go – to work hard, to contribute, and to be able to go home. Not to be mistreated or cheated out of our money.³

Lack of transparency in recruitment allows fraud, fees, and other abuses to proliferate. Because recruitment scams are so widespread, workers struggle to find legitimate job offers.⁴ As a result, recruiters who do have access to real H-2A jobs are empowered to charge unlawful fees. As a former H-2A worker who worked for five years in North Carolina explained:

The last time I went to work [in the H-2A program] was in 2018, since then I haven’t been able to get a new job offer. The principal difficulty is that recruiters charge fees to give me another opportunity or include me in a list [of H-2A beneficiaries], and I don’t have the resources to make these payments – not to mention that the payments are illegal.⁵

Creating a public recruiter registry is an important step towards addressing recruitment abuse, but as the North Carolina H-2A worker describes above, potential H-2A workers need easy access to more information to verify recruiters’ legitimacy and confirm the details of purported job offers. As detailed in the Farmworker Justice comment, the current H-2B Foreign Labor Recruiter List that the recruiter registry proposal is modeled on is largely inaccessible to workers, as it is not translated into any language other than English and is almost impossible to utilize from a mobile browser, among other reasons. In addition, the H-2B Foreign Labor Recruitment List includes no information about specific jobs and the employers offering them, including job duties, pay, work location, expected hours, and employer information. This information should be available on SeasonalJobs.dol.gov. We strongly endorse the Farmworker Justice comment’s recommendation that the Department combine the employment information already available on SeasonalJobs.dol.gov with the recruiter registry, making this information available to all prospective workers at the time of recruitment in Spanish and other languages common to workers regularly recruited for H-2A positions. The Department should also improve the accessibility and accuracy of a recruiter registry that incorporates substantive content from SeasonalJobs.dol.gov, which in its current form is itself difficult for workers to navigate and often contains outdated information. Critically, the Department must ensure that recruiter information linked to SeasonalJobs.dol.gov is continually updated

A challenge workers identify to the utility of a recruiter registry is the fact that there are often several links in the recruitment chain, and–frequently due to a lack of due diligence–employers may not know the identity of all recruiters and agents they are relying on to find the H-2A workers whose labor they benefit from. A former H-2A worker describes a situation in his community that is common in H-2A recruitment: the employer connects with one agent for recruitment, who in turn connects with another agent, but the recruiter who is in direct contact with the employer doesn’t take steps to identify the second recruiter’s employees or agents who carry out the actual recruitment activities–“there is no communication between them.”⁶ Recruiters may also work with other facilitators in the recruitment process who themselves charge unlawful fees to workers or engage in fraud or misrepresentation regarding job offers. Proposed sections 655.137(b) and 655.135(p), which would require H-2A employers to identify all “persons and entities hired by or working for the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H–2A workers for the job opportunities offered by the employer” represent an important first step. We appreciate the Department setting the expectation that employers will ask their primary recruiters who “the recruiter plans to use to recruit workers in foreign countries, and whether those persons or entities plan to hire other persons or entities to conduct such recruitment.”⁷ However, the Department should go further to require H-2A employers to affirmatively vet and monitor all recruiters in their recruitment chain, including creating due diligence processes to identify any agents or intermediaries not voluntarily disclosed by primary recruiters.

To make the benefits of improved transparency meaningful, H-2A workers also need avenues to directly communicate with employers during the recruitment process. A member of CDM’s Comité de Defensa del Migrante explains, “The government should have a mechanism that ensures that a worker can directly tell [an employer about recruitment abuses] because otherwise employers wash their hands and say ‘I didn’t know.’”⁸ Moreover, employers need incentives to take action when they learn of abuses in their recruitment chain. As the former H-2A worker who spent several seasons in North Carolina explained, “A problem I see is that when one, as a worker, complains to an employer about a recruiter’s bad treatment, the employer doesn’t take the worker seriously . . . they don’t properly investigate the situation.”⁹

To address this, the Department should require H-2A employers to take steps to be directly available to workers during the recruitment process and create procedures for promptly addressing any abuses the workers report. For example, the Department could require each H-2A employer to designate a “Compliance Officer,” who reports directly to the employer and who is responsible for investigating and addressing unlawful fees charged in the recruitment process, and to provide that person’s contact information to the Department. Just as current regulations require that employers’ contracts with recruiters prohibit charging recruitment fees, the Department could require that such contracts obligate recruiters to provide the Compliance Officer’s direct contact information to workers as part of the initial job offer, in addition to information about their rights in the recruitment process and assurances against retaliation for reporting any concerns.¹⁰ The Department could require employers to maintain, and provide to the Department upon request, documentation of any reports received by the Compliance Officer and the steps taken to investigate them as part of employers’ document retention obligations under section 655.167.

In the long run, workers emphasize the need to move towards a more just recruitment model through which workers would be able to connect directly with vetted, legitimate employers through a multilingual and accessible government database of verified job offers.¹¹ As a member of the Comité de Defensa del Migrante describes:

The government should create a platform or application that explains the necessary steps to take, where I as a worker can register to be able to apply for work through that application. Through this application, we can do away with recruiters. I wouldn’t have to pay a recruiter if through this application I can sign up [for H-2A work] myself, the employer can select me through the application, and the government can monitor the process. This way, recruitment fees would be eliminated.¹²

The workers CDM spoke to in the preparation of this comment were overwhelmingly in support of the creation of a platform like the one described above and identified the potential of this idea to uphold program integrity and facilitate the Department’s more efficient enforcement of the H-2A program rules. Members of the Comité de Defensa del Migrante suggested that a direct recruitment platform could also provide an avenue for workers to report abuses during the recruitment process, and even after arrival at the workplace, directly to employers.¹³ Further, workers noted that a direct recruitment platform hosted by the Department would better enable the Department to monitor H-2A workers’ working conditions: the Department could use the platform to reach out to workers “and ask about [their] experience and how it went with [their H-2A] employer.”¹⁴ For example, the Department could use worker contact information to survey workers about their recruitment and H-2A work experiences after completion of their H-2A contracts. Workers would be less likely to be intimidated into not reporting unlawful fees or other abuses after the contract is completed,¹⁵ and the Department could use the information obtained from these worker surveys to identify gaps in enforcement and better prioritize the use of scarce resources in determining which employers to initiate investigations of.

Finally, a direct recruitment platform will be critical to make the improvements to portability of H-2 employment currently proposed by the Department of Homeland Security (DHS) real for H-2A workers.¹⁶ In proposing these changes, DHS recognizes the contingency of H-2 workers’ immigration upon their continued employment with a sponsoring employer forces many H-2A workers to choose between enduring illegal work conditions and returning to their home countries.¹⁷ If implemented, the proposed regulation would allow an H-2A worker to start new employment with a new H-2A employer upon the proper filing of a new, non-frivolous H-2A petition.¹⁸ To facilitate this, DHS also proposes a 60-day grace period after the early termination of an H-2A worker’s employment for any reason, during which the worker would be authorize to remain in the United States to seek a new job.¹⁸ While these provisions are well-intentioned and would represent an improvement over the current status quo, they will make little difference to H-2A workers who are unable to directly connect with alternative H-2A employers to find new H-2A employment. As another former H-2A who worked in Florida worker put it, “How will you [as an H-2A worker] find another company if you don’t know where to go for work? Especially if it’s your first time coming [to the United States for H-2A work], and the ranches are isolated, how are you going to find another contract?”²⁰

The Department should take this opportunity to create an integrated, accessible platform that moves towards a more just model of H-2A recruitment by putting more control in workers’ hands. To the extent the Department considers this is outside of the scope of the current rulemaking, we ask that it be considered for future regulatory and/or sub-regulatory action.

2. Strengthening measures to combat trafficking and forced labor.

CDM strongly supports the Department’s proposal to expressly prohibit the taking or withholding of a worker’s passport, visa, or other immigration or identification documents against the worker’s wishes in a new paragraph at § 655.135(o), and its proposal to make this violation grounds for debarment under § 655.182(d)(1)(viii) and 29 CFR 501.20(d)(1)(viii). As the Department has recognized, H–2A workers are extremely vulnerable to labor exploitation, and retaining a worker’s passport or other documents can be a powerful form of coercion. We urge the Department not to broaden the proposed exceptions to this provision, as their narrowness is critical to ensuring that these proposed changes can achieve their goal of preventing forced labor through this type of coercion.

We would encourage the Department to use this opportunity to address another highly coercive practice that furthers exploitation in the H-2A program: the imposing of breach of contract fees and other severe penalties on H-2 workers who leave—or attempt to leave—employment before the scheduled conclusion of the work contract. This practice attempts to use legal mechanisms to coerce workers into remaining in H-2 employment even against their will, and in many cases constitutes trafficking or forced labor.²¹ Similar practices include recruiters requiring H-2 employees to sign promissory notes that the recruiter can then enforce in the worker’s home country, and requiring workers or their family members to sign over the deeds to their home or vehicle title as security for completion of their work. Recruiters then threaten to enforce these agreements to coerce workers into remaining with their H-2A employers as long as the employer requires, regardless of how bad the working conditions are. These instruments’ coercive effect is heightened when they are signed by workers’ family members because even if workers escape trafficking or forced labor and seek refuge in the United States, the recruiters can attempt to collect against the family members. In Mexico, CDM has observed H-2 employers’ agents taking legal action to enforce IOUs for thousands of dollars and to evict workers’ families from their homes. Workers have little recourse to challenge this type of action.

Another former H-2A worker who worked in Florida described his experience:

In my community, there are not many recruiters, so you have to take what you can get if you want to work and have opportunity. I was charged 30,000 pesos [roughly $1,700 in 2023 dollars] for the visa, payable to the recruiter. The recruiter took all this money and said that if we didn’t pay, he wouldn’t take us to work. This is how it works not only in our town. [At the H-2A workplace] there were people from other states who, once we were already in the United States, told me that they weren’t able to get the 30,000 pesos together so they gave the recruiters deeds to their land or papers for their car. When [other H-2A applicants and I] went to the recruiter’s house, he held a videoconference with the employer.

The employer was watching the interview and listening to what one of the recruiters asked . . . After the employer selected us, the recruiter made us sign a promissory note for 200,000 pesos [over $11,000 in 2023], which was his to keep. And he clearly told us that he would keep it until we completed the contract and returned to Mexico; then we could go to him and ask him to destroy the note . . . Before you go to the United States, the recruiter tells you, “Never say that I charged you,” or “Don’t talk about money.” This is a threat.

But [after arriving at the H-2A workplace], I began to think that the employer did know about the money the recruiter had charged, and the promissory note he had required us to sign, because that’s the only way [the employer] could have had us working in that way, without ever leaving, in the conditions that they dictated. Only with the fear of the promissory note would they be able to retain us in a business like that. Someone who had felt free to leave would have left without thinking about it. But people wouldn’t leave because they were trapped. It was my first time [in H-2A employment] but other workers who had had different contracts before said it was the worst place they had ever worked. [But] we couldn’t leave because the owner of the company would say, “If someone escapes from here, I will personally file a report with the consulate that you have escaped.” For that reason, I never wanted to go anywhere –that and the promissory note.²²

To better address the range of ways in which H-2 employers impose breach of contract penalties on workers and their families, we recommend that the Department amend section 655.135(j) as follows. Our suggested edits are bolded and underlined:

(j) Comply with the prohibition against employees paying fees. The employer and its agents have not sought or received payment of any kind from any employee subject to 8 U.S.C. 1188 for any activity related to obtaining H–2A labor certification, including payment of the employer’s attorney fees, application fees, or recruitment costs. For purposes of this paragraph (j), payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in kind payments, and free labor paid or provided by the employee, a relative of the employee, or any person acting on the employee’s behalf. For the purposes of this paragraph (j), payment also includes requiring the employee or any person related to the employee or acting on the employee’s behalf to sign a negotiable instrument or grant a security interest in any collateral. The provision in this paragraph (j) does not prohibit employers or their agents from receiving reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.

With this addition, proposed section 655.182(d)(1)(viii) would be strengthened to provide for debarment in the event of a determination that an employer or its agent required an H-2A worker or their family member to sign a coercive promissory note like the one the Florida H-2A worker described above.²³ Moreover, this addition would create alignment with DHS’s proposed revisions to 8 C.F.R. § 214.2(h)(5)(xi), which would clarify that fees prohibited in H-2A recruitment include breach of contract fees and penalties.²⁴ To the extent the Department determines this suggested change is outside of the scope of the current rulemaking, we ask that it be considered for future regulatory action.

3. Ensuring that key service providers and labor organizations can meaningfully support H-2A workers.

CDM strongly supports improving key service providers’ and labor organizations’ access to H-2A worker housing “to protect the right of association and access to information for H-2A workers and workers in corresponding employment and address the isolation that contributes to the vulnerability of some H-2A workers.”²⁵ In the words of the H-2A worker who recounted the harrowing experience with the promissory note described above:

I think there should be a law that lets human rights and other organizations enter the [H-2A] ranches to see workers and speak with them, find out how they are being treated, [and make sure] that they are not experiencing labor abuses more than anything else . . . because we’d say that [H-2A employers] abuse workers because they know that on those ranches, human rights and other organizations are never going to come in to see the workers. They think that no one can report them, and workers are also scared to report their employers because they don’t know where to go or have a number . . . since [workers] also don’t know how the laws here work and [have] fear of not knowing where to go or who to turn to for help in this country.²⁶

This worker’s comment illustrates why it is so critical that the Department expand the proposed right of access to workers’ housing to include not just labor organizations, but also all key service providers, using the new definition of “key service provider” proposed in section 655.103(b). In response to the Department’s request for comments on other specific aspects of the camp access provisions, we recommend the following amendments to the proposed changes:

• DOL should eliminate the proposed arbitrary restrictions on access in section 655.135(n)(2), including the restriction of access to 10 hours per month.²⁷
• Like labor organizations, key service providers should be able to request a complete and up-to-date list of H-2A workers and workers in corresponding employment, with full contact details for each worker.²⁸ The coalition comment describes a recent experience our organization had which underscores the need for key service providers to have access to this information: after conducting online outreach for a recent legal clinic, CDM staff arrived at workers’ housing to conduct additional in-person outreach only to find no workers present—even though they were visiting outside of typical work hours. H-2A workers later disclosed that their employer required them to report to work during the time that CDM visited, even though there was no work to do.

For more details, please see the coalition comment submitted by Farmworker Justice.

4. Anti-discrimination protections.

Discrimination is rampant in the H-2A and other temporary labor migration programs.²⁹ H-2A employers and recruiters routinely violate U.S. anti-discrimination laws prohibiting discrimination in hiring and employment based on race, color, age, sex—including pregnancy, sexual orientation, gender identity—religion, and national origin. For example, H-2A employers and recruiters regularly post job advertisements hiring “men only” or male workers who are “19 to 49” years old.³⁰ Once in the United States, women workers frequently experience sexual harassment and other discrimination.³¹ However, the United States government currently fails to adequately enforce protections against discrimination, creating perverse incentives for H-2A employers to bypass available U.S. workers and suppress wages and labor standards.

A former H-2B worker and H-2A applicant who filed a petition challenging gender discrimination in the H-2 programs under the United States-Mexico-Canada Agreement describes the way this unchecked discrimination plays out in her community:

I have tried to apply for H-2A jobs and I have continued facing discrimination. Over the last year, I have come across many H-2A job ads on social media. But [each time], I realized very quickly that I am not eligible: they are exclusively hiring men.

In April 2021, I saw a Facebook ad for farm work in the United States with an H-2A visa. The ad mentioned they were only hiring men. Since I have pressing economic needs, I still decided to submit an application. I filled out the application online that explicitly asked about my gender. I did not receive a response for months. In September, I realized the people hired for that particular job were about to travel to the United States. The group was composed exclusively of men.

Since [2021], I have seen hundreds of men—both from my community and from neighboring ones—travel to work in the United States with H-2A visas. However, I have not seen a single woman afforded the same opportunity.³²

To help address discrimination in the H-2A program, the Department should take the opportunity of this rulemaking to require H-2A employers to attest that they do not discriminate and include non-discrimination statements in job orders.

In addition, the Department should require that employers’ contracts with recruiters prohibit recruiters from discriminating based on a protected characteristic, just as current regulations require that employers’ contracts with recruiters prohibit charging recruitment fees.³³ In addition to these preventative measures, the Department should improve remedies for H-2A workers and applicants who face discrimination. Currently, enforcing Title VII and many other discrimination laws requires workers to exhaust their administrative remedies by filing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) and obtaining a notice of a right to sue. But the EEOC’s charge filing system is largely inaccessible to H-2A workers: the EEOC’s Charge of Discrimination form is only available in English, the EEOC does not accept charges by phone, and the EEOC’s online portal to receive complaints is inaccessible from outside the United States.³⁴ To address these inadequacies, and in light of the particular ways that discrimination is enacted in the H-2A program, the Department should create independent anti-discrimination protections for H-2A workers that are enforceable by the Department and by private right of action.

5. Conclusion
Centro de los Derechos del Migrante applauds the Department for its efforts to strengthen protections for workers in the H-2A temporary visa program. The proposed changes address some of the fundamental flaws in the H-2A program and should be implemented without delay.

We urge the Department to additionally adopt the changes we have recommended, which align with its statutory mandate and policy goals.

Sincerely,
Centro de los Derechos del Migrante, Inc.

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1 Migration that Works has submitted a separate comment in support of the proposed rules.

2 See Improving Protections for Workers in Temporary Agricultural Employment in the United States (“Improving Protections”), 88 Fed. Reg. 63750, 63825-26 (Sep. 15, 2023) (to be codified at 20 C.F. R. §§ 655.135(p); 655.137).

3 CDM interviews with anonymous former H-2A worker #1, October 31, 2023 and November 9, 2023.

4 CDM interview with anonymous former H-2A worker #2, October 15, 2023 (“It’s hard to find work, because we don’t know who the real recruiters are.”). See also Centro de los Derechos del Migrante, Fake Jobs for Sale: Analyzing Fraud and Advancing Transparency in U.S. Labor Recruitment (2019), available at https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf.

5 CDM interview with anonymous former H-2A worker #3, November 1, 2023.

6 CDM interviews with anonymous former H-2A worker #1, October 31, 2023 and November 9, 2023. For more information about different models of recruitment, see Centro de los Derechos del Migrante, Recruitment Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and Recommendations for Change 11 (2018), available at https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.

7 Improving Protections, 88 Fed. Reg. at 63803-04 (Sep. 15, 2023).

8 CDM focus group with members of the Comité de Defensa del Migrante, October 23, 2023.

9 CDM interview with anonymous former H-2A worker #3, November 1, 2023.

10 See 20 C.F.R. § 655.135(k).

11 See also Migration that Works, Proposal for an Alternative Model of Labor Migration, https://migrationthatworks.files.wordpress.com/2020/01/alternative-model-for-labor-migration.pdf.

12 CDM focus group with members of the Comité de Defensa del Migrante, October 23, 2023.

13 Id.

14 Id.

15 See CDM, Recruitment Revealed 11 (“Workers who reveal to the U.S. consulate that they have paid illegal recruitment fees risk being denied passage to the U.S.”)

16 See Modernizing H–2 Program Requirements, Oversight, and Worker Protections (“Modernizing H-2 Program”), 88 Fed. Reg. 65040, 65101-02 (Sep. 20, 2023).

17 Id.

18 See Modernizing H-2 Program, 88 Fed. Reg. at 65107-08 (Sep. 20, 2023) (to be codified at 8 C.F.R. §§ 214.2(h)(2)(i)(I); 274a.12 (b)(21)). This portability is already available to H-2A employers participating in the E-Verify system, which in practice limits its applicability.

19 Id. at 65106 (to be codified at 8 CFR § 214.2 (h)(11)(iv)), 65107 (to be codified at 8 CFR § 214.2 (h)(13)(i)).

20 CDM interview with anonymous former H-2A worker #4, October 24, 2023.

21 See 18 U.S.C. § 1589(a)(3); (c)(1);

22 CDM interview with anonymous former H-2A worker #4, October 24, 2023.

23 Improving Protections, 88 Fed. Reg. at 63827. Proposed 20 C.F.R. § 655.182(d)(1)(viii) would define a violation subject to debarment as one more acts or omissions on the part of the employer or their agent which involve “[a] violation of the requirements § 655.135(j), (k), or (o).”

24 Modernizing H-2 Program, 88 Fed. Reg. at 65103.

25 Improving Protections, 88 Fed. Reg. at 63799.

26 CDM interview with anonymous former H-2A worker #4, October 24, 2023.

27 Improving Protections, 88 Fed. Reg. at 63800-63801, 63825.

28 Improving Protections, 88 Fed. Reg. at 63825.

29.See, e.g., Centro de los Derechos del Migrante, Inc., and Penn Law Transnational Legal Clinic, Engendering Exploitation: Gender Inequality in U.S. Labor Migration Program” (January 2018), available at (https://cdmigrante.org/wp-content/uploads/2018/01/Engendered-Exploitation.pdf.

30 See Third Supplement to the Petition regarding Labor Law Matters arising in the United States Regarding the failure of the U.S. Government to effectively enforce its domestic labor laws and promote the elimination of employment discrimination in the H-2 program in violation of Chapter 23 of the United States–Mexico–Canada Agreement, Annex 1 (March 31, 2022), available at https://cdmigrante.org/wp-content/uploads/2022/03/Third-Complaint-USMCA-Supplement.pdf

31 See id. at 3 (describing sexual harrassment experienced by H-2A women workers).

32 Id. at 2.

33 See 20 C.F.R. § 655.135(k).

34 EEOC’s Public Portal website blocks web traffic from outside the U.S. When workers and CDM advocates attempt to connect to the site from Mexico, they are met with a timeout errors. EEOC also accepts charges filed by email, but neither this fact nor the corresponding field office email addresses are publicized on its website. Moreover, many migrant workers do not have email addresses, web literacy, or reliable internet access sufficient to file a complaint by email. U.S. Equal Employment Opportunity Commission, “How to File a Charge of Employment Discrimination,” https://www.eeoc.gov/how-file-charge-employment-discrimination.