The H-2A visa is an infamous program, fraught with allegations employer abuse. The definition of “seasonal worker”, coupled with the traditional rural location of farmlands makes it exceedingly difficult for H2A visa workers to unionize or even merely ban together to advocate for workers’ rights. First of all, the nature of the visa creates a migrant workforce that presumably disbands and relocates each harvesting season. Furthermore, the spatial isolation of many farms and fields where H2A visa holders work creates an opportunity for labor abuse to go unnoticed by authorities and the media. There are a number of articles detailing the abuse faced by H2A workers, including wage theft, human trafficking, and abhorrent working conditions.
In its coverage of Obama’s executive order announcement, The New York Times made it clear that the relief would not be able to protect immigrants under the H2A visa. “Farm workers, for example, will not be singled out for protections because of concerns that it was difficult to justify legally treating them differently from undocumented workers in other jobs, like hotel clerks, day laborers and construction workers.” Thus, any protection afforded to farmworkers in particular is incidental to the overall scope of the executive order. That scope does not apply extensively to illegal farmworkers and, moreover, the text of the order actually excludes current H2A visa holders.
A memorandum issued by the director of U.S. Citizenship and Immigration Services outlines the exact parameters of the provided relief. Review of the memo expose inadequacies that will leave farmworkers vulnerable to abuse.
In order to qualify for relief under Obama’s new executive order, an applicant must not have lawful status as of November 20, 2014, the date of the memo. In other words, an individual must be illegal in order to qualify for relief. Agricultural workers currently holding an H2A visa are legally present in the United States and, therefore, unable to qualify for deferred action. It is true that, ostensibly, an immigrant with a visa does not need to resort to deferred deportation because the government will not deport them so long as they abide by the terms of the visa. However, the H2A visa has one particularly infamous term that the farmworker must follow: the migrant worker must remain with the same employer. This small detail allows farmers to have huge leverage over H2A visa holders; as soon as the farmworker criticizes working conditions or asserts the right to fair wages, the farmer can decline to sponsor the immigrant for the H2A visa. The consequence is that H2A immigrants are bound to their employer in order to remain in legal status.
The exclusion of current H2A visa holders from deferred action, therefore, leaves a vulnerable population subject to potential labor abuses. If the president’s deferred action program would have allowed for H2A visa holders to also apply for deferred action, it would have provided the agricultural workforce with a means by which to challenge abusive employers without running the risk of losing their visa and facing deportation. Inclusion of H2A visa holders would have stabilized the pool of legal workers available to harvest and process the United States’ food supply. Sadly, President Obama missed the opportunity.