Reforming H-2A: Protecting Migrant Workers Before Arrival on U.S. Farms

Migrant farmworkers who seasonally enter the United States to work on farms using H-2A visas suffer well-documented abuses. Dependent on their employers for legal status, housing, transportation, and food, H-2A workers succumb to a power dynamic that keeps workers from speaking out for fear of being fired and possibly deported. However, little academic attention has been paid to the problematic dynamics that trap these workers in a cycle of abuse long before they even set foot on U.S. farms, starting with the H-2A recruitment process. This process, which often starts in Mexico, involves an opaque and complicated network of recruiters who fraudulently or illegally charge workers recruitment fees. Further, workers often must pay out of pocket to travel from Mexico to the United States, and employers often fail to fully reimburse workers once they arrive. Instead, workers must take out loans and incur significant debt, even though they are doing employers a favor by alleviating the inadequate farm labor supply in the United States. This Note examines the pervasiveness of recruitment debt that H-2A workers shoulder before even arriving to the United States and argues that current federal regulations enable this debt by allowing for reimbursement post-arrival. This Note then proposes two solutions aimed at increasing worker power ex ante—before arrival. First, the Department of Labor should increase transparency into who recruiters are by thoughtfully designing a recruiter database accessible to potential H-2A workers. Second, new regulations should require employers to pay for travel and application expenses and should prohibit reimbursement except in rare circumstances. These new regulations must be coupled with strategic enforcement to incentivize employers themselves and the recruiters they use to comply with the proposed regulations.