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Engracia Hernández-García was employed as a domestic worker in the United States for a period of seven years while on a B-1 visa. In 2021, Engracia brought a lawsuit against her former employers alleging violations of state and federal laws.  The defendants denied (and continue to deny) the facts and liability as alleged by Ms. Hernández-García.

Centro de los Derechos del Migrante, Inc (CDM), Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale), and the University of Michigan Law School’s Human Trafficking Clinic represented Engracia in the case in the United States District Court for the Southern District of California.

This lawsuit was resolved to the mutual satisfaction of the parties.

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Engracia Hernández-García estuvo empleada como trabajadora del hogar en los Estados Unidos por un periodo de siete años con una visa B-1. En 2021 Engracia presentó una demanda contra sus empleadores alegando violaciones de leyes estatales y federales. Las partes demandas negaron (y lo siguen negando) los hechos y la responsabilidad como alegaba la Señora Hernández-García.

Centro de los Derechos del Migrante, Inc (CDM), Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale) y la Human Trafficking Clinic de la escuela de leyes de la Universidad de Michigan representaron a Engracia en este caso frente a la Corte de Distrito de los Estados Unidos del Distrito Sur de California.

Esta demanda fue resuelta a satisfacción mutua de ambas partes

FOR IMMEDIATE RELEASE

February 13, 2023

Contact: Francisco Díaz Pinelo francisco@cdmigrante.org

Centro de los Derechos del Migrante receives the Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons. 

Washington D.C., Centro de los Derechos del Migrante, Inc. (CDM), a Baltimore-based migrant workers’ rights organization, received the Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons today at the White House. The U.S. Secretary of State Antony Blinken presented the award to Rachel Micah-Jones, CDM’s Founder and Executive Director, during a cabinet-level meeting of the President’s Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF). Rachel was accompanied to the ceremony by CDM Board President Cori Alonso-Yoder.

Established in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, the award recognizes individuals and organizations for extraordinary efforts in the fight against human trafficking. CDM receives this recognition on behalf of President Biden “for its outstanding record of assisting thousands of migrant workers to defend their rights and its years of tireless advocacy and organizing to advance a more just and humane migration process free of forced labor and other forms of exploitation,” as stated in the award citation.

“CDM is honored to receive the Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons. We are proud to be recognized for our role in the collective effort to prevent and end forced labor and human trafficking,” said Rachel Micah-Jones, CDM’s Founder and Executive Director. “We’ll continue to uplift migrant worker voices and support them in their fight for justice by holding accountable individuals and corporations who benefit from these abuses.”

Structural flaws built into the temporary visa programs – such as deep power imbalances between employers and workers – put migrant workers at risk for abuse, including wage theft, discrimination, forced labor and human trafficking. 

In its 2020 report “Ripe for Reform,” CDM found that many of the H-2A workers surveyed experienced indicators of labor trafficking while working in the United States. Thirty-four percent of those interviewed described restrictions on their movement, such as not being permitted to leave the employer-provided housing or worksite. Employers seized the passports of 7% of workers. And 32% of those surveyed described themselves as not feeling free to quit.

Founded in 2005 in Zacatecas, México, CDM has fought alongside migrant worker leaders to ensure that migrant worker rights are respected and laws and policies reflect their voices and experiences. The organization also provides legal services to hundreds of migrant workers throughout the U.S. and Mexico each year. CDM is actively litigating cases on behalf of trafficking survivors from Baltimore to San Diego. 

For more information, please visit www.cdmigrante.org or contact CDM at info@cdmigrante.org.

On December 15, 2022, the U.S. Department of Homeland Security (“DHS”) published a temporary final rule (“TFR”) confirming it will once again expand a notoriously abusive work visa program. DHS will issue 64,716 supplemental visas—20,000 to people from Haiti and Northern Central American countries, and just under 45,000 to people who have received H-2B visas or H-2B status in the last three fiscal years. DHS’s TFR marks the fifth year the agency has expanded the H-2B program without meaningfully protecting workers’ rights. 

What exactly is the H-2B program and what does this TFR mean? Here’s what you need to know:

What is the H-2B program? 

• The origins of the H-2B program—and its agricultural counterpart, the H-2A program—stem from a long history of excluding Black people, indigenous people, and people of color from the benefits of citizenship. The U.S. Constitution and racist laws have enabled white people to enslave Black people and our legal system continues to enable corporations to suppress workers’ wages and efforts to organize against unconscionably low pay and dangerous working conditions. The H-2 programs represent the latest iteration in a long line of evolving policies and programs—like segregationist Jim Crow laws and the Bracero Program—that harm Black and Brown workers.
• In 1986, Congress amended the Immigration and Nationality Act (“INA”), the most important U.S. federal immigration law, to create two separate temporary work visa programs—the H-2A program for agricultural jobs and the H-2B program for non-agricultural jobs. (Congress created the original H-2 program in 1952.) Through the 1986 amendment, Congress gave DHS, and its predecessor agency, the INS, the authority to issue 66,000 H-2B visas each year. Many people call this limit the “H-2B visa cap.” But starting in 2015, Congress carved out an exemption to the cap, giving DHS new authority to issue visas beyond the cap.
• Workers with H-2B visas receive temporary permission to work in the United States for one employer. If that employer violates their rights, it’s nearly impossible for workers to leave that employer and move to another.
• U.S. businesses employing H-2B workers must certify to the government that they won’t violate U.S. laws. But they routinely do. Unscrupulous businesses force H-2B workers into debt to pay for jobs, commit wage theft, discriminate, compel people to work in unsafe conditions, and retaliate against workers who dare to speak out about abuses. (You can read more about these abuses in CDM’s investigative reports on the H-2B program and our lawsuits.)

Does the H-2B program protect workers at all?

The government often touts the H-2B work visa program as a win-win-win for businesses, internationally recruited workers, and governments. The story goes like this: U.S. businesses need workers, and workers from Mexico and other countries need jobs. The H-2B program gives the U.S. government a tool to manage migration by issuing workers temporary visas for jobs without a path to citizenship. But this story ignores that the H-2B program’s structure enables employers to violate workers’ rights. If workers speak out about abuses, they risk losing their jobs, visas, and authorization to work in the United States. Current program regulations make it nearly impossible for workers to leave an abusive employer and get a new H-2 job.

When is DHS issuing the newly announced 64K+ supplemental visas?

DHS is issuing the supplemental H-2B visas now, at the beginning of the fiscal year. (The federal government’s fiscal year began on Oct. 1, 2022.)

Why is DHS issuing these visas now?

In an earlier announcement about the TFR, DHS said it needs to issue the visas now “to meet the needs of American businesses” that are demanding workers. We’ve all seen the signs in businesses’ windows with anti-worker messages like, “nobody wants to work anymore.” While we recognize that inflation is high and unemployment is relatively low, it’s critical to understand that corporate profits have soared, and the federal minimum wage hasn’t budged since 2009! Too often, we see U.S. businesses paying below-market wages to H-2B workers—sometimes wages that only amount to a few dollars an hour. So if businesses are clamoring for more H-2B visas, they must pay better wages.

Remind me again: who will get the visas?

DHS is reserving 20,000 visas for people from Haiti and Northern Central American countries and nearly 45,000 for “returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.”

Why Haiti and Central America?

Forcibly displaced people in Haiti and Central America are fleeing horrific violence, including violence against trans people, and climate-crisis disasters. Many desperately hope to find safety in the United States through asylum and other forms of immigration relief. The Administration appears to see the H-2A and H-2B programs as a strategy for addressing these people’s urgent humanitarian needs. But this policy is deeply misguided: the H-2 programs do not give anyone safety, permanency, or family unity in the United States. Currently, at best, these programs offer a temporary job. And at worst, they enable employers to commit labor abuses without accountability.

What about protections for workers?

DHS has pledged to “institute robust protections for U.S. and foreign workers alike,” using similar language to what it said in May 2022. But so far, these protections are not enough. Most weeks, CDM hears from dozens of workers experiencing abuses in the H-2 programs—from fraud and discrimination in recruitment in Mexico to wage theft and dangerous workplaces in the United States. H-2B workers face unfair hurdles in getting legal representation to address these abuses because current funding rules prohibit legal services organizations from representing most H-2B workers.

Didn’t I hear about another upcoming H-2 rule that will protect workers?

Yes. The U.S. Department of Labor (“DOL”) tweeted a hopeful message for workers and advocates several months ago. In the tweet, DOL said, “Worker advocates have raised serious concerns about the H-2 programs. @USDOL has heard you. We continue to review the H-2A rule proposed by the last administration, and intend to undertake additional rulemaking in the H2 programs to promote worker voice and worker protections.”

So what happened with those worker protections?

In its earlier announcement about the TFR, DHS affirmed that it is still working with DOL on new H-2 rules that will better protect workers. It promised to publish a notice of proposed rulemaking “[i]n the coming months.” Additionally, the White House has convened an H-2B Worker Protection Taskforce “focus[ing] on (1) threats to H-2B program integrity, (2) H-2B workers’ fundamental vulnerabilities, including their limited ability to leave abusive employment without jeopardizing their immigration status, and (3) the impermissible use of the program to avoid hiring U.S. workers.” This Taskforce is “assess[ing] a variety of policy options to address these issues and will provide an opportunity for relevant stakeholders to offer input. The work of the Taskforce will build on ongoing efforts in both departments to reform the H-2 temporary visa programs.” 

What is CDM doing to defend workers’ rights in the H-2B program?

Since the transition, CDM and Migration that Works, a coalition we chair, have pushed the Administration to protect workers’ rights in the H-2 programs. We’ve urged the Administration to make it easier for workers to leave abusive employers and hold employers accountable for discriminating against workers, committing wage theft, and violating the programs’ rules. We’ve also continued to call in DHS to join the DOL in establishing a process for supporting workers with administrative immigration relief. And Migration that Works has led the effort to urge the Administration to make data about these programs more transparent—data that will help workers and advocates hold the government and employers accountable for abuses against workers. Many of our policy recommendations do not require the government to change regulations: they merely require the Administration to prioritize workers’ rights.

What can I do to support workers?

Make your voice heard. When DHS and DOL announce new H-2 rules, we will invite you to submit a comment supporting workers’ rights. We expect that U.S. businesses will flood the comments with anti-worker demands. Workers and their advocates and allies need to send a loud and clear message to the Administration to support meaningful protections for workers. And we invite you to consider donating to Centro de los Derechos del Migrante, Inc. to support our administrative advocacy and our efforts to center workers’ rights in the H-2 programs.

Dear Governor Newsom, 

We write to urge you to sign AB 364 into law. This legislation provides necessary protections  for the hundreds of thousands of internationally recruited workers who perform work essential to California’s economy. AB 364 requires labor recruiters that bring workers to California from abroad to register with the State and abide by commonsense rules to ensure that workers can seek redress from recruiters that violate the law. At the same time, the legislation benefits law abiding employers by shielding those that use registered recruiters from liability and preventing  low-road employers from undermining labor standards for all California workers.  

Since 2005, Centro de los Derechos del Migrante, Inc. (CDM or the Center for Migrant Rights), the Nation’s first binational U.S.-Mexico migrant workers’ rights organization, has advocated alongside internationally recruited migrant workers to ensure that they can work with dignity in  U.S. workplaces. As CDM has documented, however, all too often, these workers suffer abuses—like prohibited recruitment fees and fraudulent job offers—that start at their point of recruitment abroad.1 These recruitment violations are frequently at the root of exploitative employment practices in the U.S., including labor trafficking, that depress working conditions for all workers. Yet it can be difficult for migrant workers to hold foreign labor recruiters accountable because the recruiters often lack a formal presence in the U.S., fail to respond to litigation, or are insolvent.  

AB 364 addresses these problems head-on by eliminating the unjustified exclusion of most California migrant workers from the innovative protections of SB 477, enacted in 2014.2 Some of the critical provisions of SB 477 include:  

• Requiring foreign labor recruiters to register with the Labor Commissioner, establish a California agent for service of process, and purchase a surety bond to ensure accountability for violations;
• Disqualifying recruiters that commit violations of basic labor protections from engaging in business in the State;
• Ensuring that workers receive transparent, accurate information about their jobs before traveling to California to work;
• Establishing a complaint mechanism for workers who suffer violations to seek redress; and
• Giving safe harbor to employers that use properly registered recruiters.

SB 477 promised to greatly improve the working conditions of migrant workers in California. Unfortunately, in a legislative oversight, it only covered a small subset of internationally recruited migrant workers—H-2B visa workers employed in non-agricultural jobs.3 The legislation thus left hundreds of thousands of migrant workers in industries as varied as agriculture and technology vulnerable to unscrupulous recruiters. Workers in many of these sectors experience pervasive violations in recruitment and employment.4 Signing AB 364 into law will ensure that these workers are protected from labor abuses.  

California hosts more temporary visa workers than any other state in the U.S. Its laws should serve as a model for the Nation in protecting workers from the abusive recruitment practices that currently pervade labor migration programs.  

Thank you for considering our request that you sign this important legislation into law. 

Sincerely,  

Benjamin R. Botts 

Legal Director 

Centro de los Derechos del Migrante, Inc.  

1 See, e.g., Centro de los Derechos del Migrante, Recruitment Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and Recommendations for Change (2014), https://cdmigrante.org/wpcontent/uploads/2018/02/Recruitment_Revealed.pdf.  

2 See Cal. Bus. & Profs. Code §§ 9998-9998.11.

3 See id. § 9998.  

4 See, e.g., Centro de los Derechos del Migrante, Ripe for Reform: Abuses of Agricultural Workers in the H-2A  Program (2020), https://cdmigrante.org/wp-content/uploads/2020/04/Ripe-for-Reform.pdf (out of 100 H-2A  workers surveyed, 94% reported at least three serious labor violations). 

You’ve probably seen the news: it looks like the U.S. Supreme Court is about to eviscerate the right to an abortion—a constitutional right that has been protected for half a century. But it’s important to know that you still have the right to an abortion, although many barriers limit access to this right.

Three things you should know.

First: Until the Supreme Court publishes its final decision, the U.S. Constitution still protects the right to an abortion. In other words, regardless of where you are in the country or your immigration status, you still have the constitutional right to an abortion. And even if the Supreme Court ends the federal constitutional right to an abortion, some states have protections and laws ensuring that pregnant people still have access to this right.

Second: We recognize that many people cannot access the right to an abortion because it requires economic resources that many people don’t have. If you want or need an abortion and are looking for financial, logistical, or emotional support, you can call the National Abortion Federation at 1-800-772-9100 (Monday – Friday, 8 am – 7 pm EST; Saturday and Sunday, 8 am – 4 pm EST). Additionally, the National Network of Abortion Funds has a list of funds in each state and links to their websites. You can click on “view fund” to see the website of the fund you want to contact. You can also find the nearest abortion services to you through Planned Parenthood.

Third: What’s going to happen next? Although the document we saw this week is a draft and not a final decision, many legal experts believe that the Supreme Court will eliminate the constitutional right to an abortion—established in 1973 in the Supreme Court decision Roe v. Wade—in a decision within a few weeks. This decision would be an attack on all women and every person who can become pregnant. It would also cast doubt on other critical rights—for example, marriage equality, the right to contraception, and the right to privacy in private sexual activities, among other rights.

Some states have state-law protections guaranteeing the right to an abortion. Under current law, if the Supreme Court eliminates the right to an abortion, these state-level protections would still exist for the time being.

But many states will use the final opinion to attack women’s and other people’s rights more broadly.

At CDM, we are committed to fighting alongside migrant workers against any law or rule that limits people’s access to healthcare, including abortion. We invite you to join us and show your support for abortion access by sharing this information with your networks on social media.

The Department of Labor (DOL) Wage and Hour Division (WHD) has issued new guidance which better protects workers’ rights in the H-2B program. Directed at WHD’s field investigators, who are tasked with investigating cases at the local level, this new and updated guidance addresses two widespread abuses that workers, advocates, and CDM have raised—misclassifying jobs and failing to pay overtime. 

We are pleased with these developments, which are critical to ensure workers are not robbed of their wages. 

Employers often misclassify jobs in order to run an inroad around DOL. When employers apply for employment certifications from DOL, they are supposed to describe the work that H-2B workers will do. In reality, unscrupulous employers describe one job to get an H-2B employment certification and then require workers to do an entirely different job, often underpaying them in the process. 

Employers mislead the government and workers by misclassifying jobs to avoid paying the prevailing wage—the wage the law requires them to pay to H-2B workers. By clarifying that employers must pay the highest prevailing wage if a job involves two distinct roles, and reiterating WHD’s commitment to enforcing that protection, the DOL is taking an important step towards ending misclassification. We applaud DOL’s efforts to stop this practice.

Without oversight, abusive employers who misclassify jobs may underpay H-2B workers by thousands of dollars over a season.

The misclassification guidance follows WHD’s December 2021 guidance on overtime pay for H-2B workers. There, the WHD emphasized an issue that workers and CDM have raised for more than a decade—H-2B employers must follow state and local overtime laws in paying H-2B workers overtime.

The WHD’s new guidance is a promising first step towards ending common wage abuses in the H-2B program. We urge the WHD to prioritize protecting H-2 workers’ rights by promptly investigating complaints about employer abuses.

April 7, 2022

Julie Su

Deputy Secretary of Labor

U.S. Department of Labor

Sent via email

      RE: Ending Sex Discrimination in the H-2 Program and Ensuring Access to Justice for H-2 Workers

Dear Deputy Secretary Su:

         I write to thank you for meeting with my colleague, Centro de los Derechos del Migrante, Inc. (CDM) Outreach, Education, and Leadership Development Director Jocelyn Abigail Reyes Moctezuma and allied organizations in Mexico City this week to speak about women workers’ rights and urge you to continue this critical conversation. As labor migration programs continue to expand rapidly without a corresponding increase in labor protections for workers, we hope your agency will promptly implement your promises to workers’ rights advocates. I invite you to meet with CDM and hear directly from migrant worker women in May 2022. Our goals are to concretely address rampant sex discrimination and gender-based violence in the H-2 temporary worker programs and resolve our USMCA Complaint.

         I was grateful to hear that you spoke about the Department of Labor’s commitments to listening to the voices of women workers and leaders while advancing equity and labor justice for workers, enforcing labor laws, and prioritizing Department resources for protecting the most vulnerable workers. Given the systemic discrimination women confront in the H-2 temporary worker programs, including barriers to accessing justice, CDM has urged the Department to prioritize these issues as the Administration expands the flawed H-2 programs.

Having long admired your advocacy and leadership on behalf of low-wage workers, I appreciate that you share our deep concern about migrant worker women’s particular vulnerabilities in the H-2 programs. Thank you and your colleagues for your work to protect workers’ rights, and I urge you to promptly and meaningfully respond to migrant worker women’s urgent demands. Thank you in advance for contacting me at rachel@cdmigrante.org so that we can arrange a time to meet in May.

Thank you very much.

Warmly,

Rachel Micah-Jones

CC: Samantha Tate, U.S. Department of Labor Bureau of International Labor Affairs 

FOR IMMEDIATE RELEASE: March 31, 2022
Contact: Evy Peña (evy@cdmigrante.org)

MEXICO CITY, MEXICO — Today, 373 days after filing their original petition under the United States–Mexico–Canada Agreement agreement, migrant worker women and a binational coalition filed a third supplement to the complaint. The supplement details the continued sex-based discrimination within the H-2 visa program as well as the lack of progress by the U.S. government in enforcing its labor laws since the petition was filed on March 23, 2021. Formed by more than 153 signatories — 125 organizations and 28 leading academics, the coalition is led by the binational organization Centro de los Derechos del Migrante, Inc. (CDM).

By abrogating its responsibilities under the USMCA as well as failing to respond to the original complaint, the petitioners contend that the U.S. continues to willfully tolerate sex-based discrimination during recruitment, sexual harassment, and barriers to justice faced by migrant worker women in the H-2 programs.

In testimonials in today’s filing, migrant worker women detail:

• Sexual harassment, intimidation and attempted sexual assault by supervisors and recruiters.
• Social media advertisements for job opportunities open only to male applicants.
• Going through a lengthy and expensive application process only to be told that women “can’t make it in the field” — despite the applicant having 18 years of experience performing farm labor.
• Channeling women into lower paying jobs in crab houses as opposed to the more lucrative opportunities offered to men for H-2A farm work.

“Since we filed the Public Communication, I have seen hundreds of men go to the United States on an H-2A visa; however, I have not seen a single woman obtain these job opportunities,” said Adareli Ponce Hernandez, a co-petitioner and member of CDM’s Migrant Defense Committee. In the supplement, Ponce Hernandez states that she has been denied access to job opportunities several times since filing the complaint last year. “I still hope to go to work in the United States to be able to support my family and fulfill my dreams. But if the US government doesn’t push employers and recruiters to end discrimination, things won’t change for migrant women.”

The supplement was filed days before the Secretary of Labor Marty Walsh’s visit to Mexico on April 4th. Secretary Walsh will hold bilateral meetings with Mexican government officials to discuss labor issues, including this complaint. Thus far, the U.S. government has not made any policy changes to remedy these violations or even a timeline or work plan for addressing them.

“While the U.S. government sits on our complaint, migrant women continue to face sex discrimination. The government’s continued failure to act violates its legal obligations under the trade agreement,” said Rachel Micah-Jones, founder and executive director at CDM.

Hundreds of thousands of migrant workers arrive in the U.S. every year to work on H-2 visas in industries including landscaping, agriculture, construction and seafood processing — the vast majority from Mexico. Due to the discrimination in recruitment and hiring, only 3% of H-2A visas (for agricultural work) were issued to women in 2018. Women are funneled into lower-paying jobs under the H-2B visa (for non-agricultural work) that place them at higher risk of gender-based violence.

The USMCA, which came into effect on July 1, 2020, includes an enforceable labor chapter that explicitly mentions migrant workers’ rights. Article 23.3 of the USMCA declares that parties adopt and maintain rights including “the elimination of discrimination in respect of employment and occupation.” Article 23.8 establishes that parties must ensure that migrant workers are protected under its labor laws. In the U.S.,Title VII of the Civil Rights Act of 1964 forbids discrimination in recruitment and hiring as well as prohibits employers from discriminating against a worker based on sex “with respect to compensation, terms, conditions, or privileges” of employment.

Today’s filing is the third supplement to the original USMCA complaint. In June 2021, 59 leading human rights scholars across Mexico, the United States and Canada highlighted additional regional and international human rights norms that ensure women’s rights to equality and nondiscrimination, including the ILO Declaration on Fundamental Principles and Rights at Work.

The USMCA complaint outlines suggested enforcement measures for the U.S. to adopt in order to ensure access to justice and adequate oversight. Recommendations include:

The Equal Employment Opportunity Commission (EEOC) and state agencies charged with implementing anti-discrimination policy should make their complaint processes accessible to H-2 workers by setting up a 24-hour complaint hotline in multiple languages, including indigenous languages and Spanish.

The EEOC and DOL should affirmatively allocate more resources to investigating and monitoring H-2 workplaces for sex-based labor segregation.

Access to legal services, including federally funded legal services should be extended to all H-2 workers.

The DOL, DOS, and United States Citizenship and Immigration Services (USCIS) should improve record keeping and data transparency to allow for better monitoring of sex distribution in the H-2 programs, including by occupation and wage

To read the complaint, please visit: https://cdmigrante.org/migrant-worker-women-usmca/

About Centro de los Derechos del Migrante, Inc. (CDM)

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

Migrant workers with H-2B visas have long faced an impossible—and fundamentally unjust—choice. When employers violate their rights, the law forces workers to decide whether to keep working for their designated employer or lose their visas and income.

The Department of Homeland Security (DHS) had an opportunity to fix this problem. But it did not. Just as it did in last year’s temporary final rule, DHS temporarily gave workers with H-2B visas the legal ability to leave one job for another. This protection—visa portability—is a crucial part of the worker-centered labor migration model we’ve long advocated for. Visa portability should allow workers to quickly and seamlessly leave dangerous and unfair working conditions for another job without sacrificing their income. But DHS’s current rule keeps power in the hands of employers and recruiters: it prevents workers from changing jobs without first getting a new employer to petition for them. Since DHS first implemented its flawed portability rule last year, CDM has not spoken with a single worker with an H-2B visa who has successfully left an abusive workplace and transferred to a safer one.

DHS will soon issue another, more comprehensive rule on H-2B visas. In this new rule, DHS should take employers and recruiters out of the portability equation. It should give workers with H-2B visas the power to seamlessly transfer from an abusive employer to a new employer. With meaningful visa portability, workers will face fewer risks when they speak out about abuse. Beyond portability, and instead of expanding this program, the Administration should be striving to strengthen worker protections.

FOR IMMEDIATE RELEASE
January 14, 2022
Media Contact: Melanie Stratton-Lopez;
melanie@cdmigrante.org

We are appalled by the Supreme Court’s decision to block the Biden-Harris Administration’s vaccine-or-test rule. The rule would have required large employers to ensure that their employees were vaccinated or wore masks and tested weekly. While the rule wasn’t perfect, it was a positive step towards instituting health and safety practices BIPOC workers across industries and immigration status have been demanding. The Court’s decision could not have come at a worse time, as the Omicron variant surges through workplaces across the country, case numbers soar, and hospitals face unprecedented demand for emergency services. The rule would have protected 80 million workers. And it would have saved lives.

Throughout the pandemic, a disproportionate number of workers who have fallen ill and died from the virus causing COVID-19 are from immigrant and migrant communities. These communities often have limited access to healthcare and work in industries with low wages and well-documented histories of abuse. Even worse, workers who have courageously spoken out about outbreaks in their workplaces have suffered retaliation by employers, unlawful firings, loss of immigration status, and removal. An ETS showed some promise.

This decision is a step back and painful betrayal of all workers, their families, and communities. The unsigned majority opinion politicizes science, undermining public health by stripping the Occupational Safety and Health Administration of its ability to protect workers from grave danger during a national emergency. All branches of government owe a critical debt to workers.

We rally with workers in urging states to implement comprehensive protections. Workers’ health should not depend on the goodwill of employers. Additionally, OSHA should take this opportunity to move forward with promulgating an infectious disease standard. At the minimum, such a standard should guarantee comprehensive engineering and administrative controls, personal protective equipment, like respirators, job protection, paid medical removal, and adequate ventilation for all workers. An infectious disease standard should also require vaccination for workers who work in especially cramped, crowded working conditions like those faced by migrant agricultural workers and protein processing workers.

We need enforceable legal protections now.