Years later, Diego still struggles to find the words to describe the labor camp he was expected to call home during the spring of 2018.
“This is where we’re going to live?” Diego recalled thinking. “Everything was filthy.”
His first impulse was to snap photos with his cell phone. He photographed the “bathroom” that only had two functional toilets for dozens of men—and no doors. A “shower” that was nothing but a bucket in an enclosed space and a spigot that shot out cold water. There weren’t enough beds for all the men. Those who had mattresses may have actually been the unlucky ones because they were yellowing, stained, and full of ticks. There were also snakes in the house, including one in the kitchen where the only working appliance in the whole ramshackle place was a single refrigerator that looked like it’d never been cleaned.
There was no food and nowhere for Diego and his best friend Mario to rest their heads after a grueling bus ride from Mexico that took days longer than it should have and depleted the little money they had. The labor camp was the second blow they’d received since arriving in this place they called Carolina del Norte. The first came a couple of hours earlier.
H-2A workers often have confusing employment arrangements in which they are jointly employed by a labor contractor and a grower or farm. This was true for Diego and Mario, but effectively their primary boss was a young Mexican-American labor contractor. Shortly after they arrived, the labor contractor organized an offsite gathering of the hundreds of Mexican workers he brought to the U.S. that spring as part of the H-2A Temporary Agricultural Program, a guest visa program that enables American employers to bring in foreign workers to perform seasonal agricultural work. The purpose of this unexpected meeting? To threaten the workers with immigration enforcement if they left their jobs harvesting blueberries. The employer also made the workers sign forms in English, falsely claiming he reimbursed them for their visa and travel expenses.
Like many migrant workers, Diego and Mario heard for the entirety of their lives that the U.S. was a place where—if you hustled hard enough—you could make serious money, the kind that enabled you to take good care of your family and build a nice home in Mexico. Maybe even open your own business. But shortly after arriving in the U.S. as H-2A workers, Diego and Mario found themselves starving, scared, and plotting their escape from the very jobs they staked their families’ futures on. In part, this is why they are using pseudonyms. Not only are they immigrant victims of trafficking, but pursuing justice has proven dangerous. The man who recruited them into the H-2A program in southern Mexico threatened Mario’s wife.
They endured many hardships in Mexico, mostly shaped by poverty, but it was in the land of plenty that Diego and Mario went hungry for the very first time.
American media outlets, immigration advocacy organizations, and farmers’ unions have historically framed the H-2A program as “mutually beneficial.” The program provides a solution for American employers’ agricultural labor shortages, and, in return, it allows foreign workers to legally work in the U.S., making wages unheard of in their home countries.
But there is another critically important story to tell about the H-2A program: one that follows the deep problems that run through the program—problems that stem from the historically racist laws that shape it, the troubling history that informed it, the disposable ways employers are empowered to treat migrants, and the federal government’s decades of failure to protect the workers that account for 10% of the farm labor force.
Even the one real benefit the program promises H-2A workers—money—isn’t guaranteed. In the fall of 2021, Prism, Futuro Investigates, and Latino USA obtained records from the U.S. Department of Labor (DOL) that showed $7.2 million in unpaid wages due to thousands of H-2A workers victimized by wage theft over the previous decade had never been returned to them. It had been sent to the U.S. Treasury instead. Officials at the DOL defended the practice, saying many transitory migrant workers are too difficult to locate. But as reporting for this story came to an end, the U.S. and Mexico announced a new joint effort to find and compensate Mexican H-2A workers, who comprise a bulk of the H-2A workforce and a majority of those owed wages. This, then, is the backstory on why abuse and exploitation are baked into the H-2A program and how migrant workers who pursued legal remedies regarding millions of dollars in stolen wages ultimately had their hard-earned money pocketed by the U.S. government.
A largely hidden workforce
Before their time in the U.S., Mario and Diego were familiar with agricultural work that ebbs and flows with the seasons, having grown up in families that harvested corn, coffee, and other crops. Their region was known for torrential rains, but spring in southern Mexico was a sunny and wondrous thing.
In the U.S., this is also when the workers come, a largely hidden labor force mostly comprised of Mexican men. There are families in Mexico where multiple generations have obtained guest visas to work in the H-2A program. Each season, they kiss their families goodbye and catch buses headed for the U.S., where they spend months harvesting crops like blueberries, sweet potatoes, watermelons, or apples sold by retailers like Trader Joe’s, Walmart, and Kroger.
Each spring, as we shed our winter clothing, these workers pile on long sleeves and bandanas to protect against the sun and harsh pesticides. This is just another reality of the brutal agricultural work that has them in constant motion from sunrise to sunset at least six days a week. For U.S.-based consumers, this translates to an embarrassment of riches: oranges in the fall and a year-round bounty of perfect strawberries. For H-2A workers, it is a lopsided agreement that often begins with massive debt and ends with weary, broken bodies. An unlucky few like Diego and Mario leave American fields and farms with even emptier pockets.
Since its current iteration launched in 1986, the H-2A Program has operated as an outlier in the U.S. immigration system. Unlike other visa categories, for example, there are no caps on the number of H-2A visas that the DOL certifies. The number of jobs the DOL allows H-2A workers to fill increased from 75,000 in 2010 to 372,000 in 2022. Visas for these guest workers are also issued quickly, with few roadblocks and backlogs that plague other visa types—especially for applications from Mexico.
In crude terms, the H-2A program is about supply and demand. American employers’ demand for foreign workers is very high, but their insatiable need doesn’t shift power to the workers.
Quite the contrary. Despite employers’ claims that the H-2A program is too “expensive” and “bureaucratically complex,” the Economic Policy Institute (EPI) reports that American employers prefer to utilize the H-2A program over hiring U.S. workers because they see foreign workers as “exploitable.” The H-2A program has exploded over the last decade, but increased growth has not translated to increased resources to the DOL, the agency primarily responsible for overseeing the program. According to EPI, the government’s woefully inadequate oversight allows “frequent and extreme” violators of H-2A regulations to continue hiring guest workers with impunity.
In broad terms, the H-2A process requires American employers who want to fill jobs with foreign workers to initiate a labor certification process with DOL at least 60 days before the job’s start date by submitting job orders to State Workforce Agencies (SWAs). These state-run entities inform unemployed Americans about the job opportunities because, as part of the H-2A program, employers are required to prove they first tried to hire American workers for the jobs. If too few U.S. workers apply, the DOL will certify the employer to hire H-2A workers for the remaining positions. Then, employers petition U.S. Citizenship and Immigration Services (USCIS) to admit foreign workers. Employers can generally request workers from 86 eligible countries, though 90% hail from Mexico. When USCIS approves a petition, workers then apply for their visas.
That’s the official breakdown, but there’s also the recruitment phase. American employers can hire legitimate labor recruiters or contractors to help them find foreign workers to bring to the U.S. for the H-2A jobs they want to fill. But in Diego and Mario’s case—and the cases of many H-2A workers—recruitment comes with an illegal fee as part of a “non-uniform, complex, and often informal process,” according to a 2013 report about recruitment from Centro de los Derechos del Migrante (CDM), a foundational binational organization that supports Mexico-based migrant workers.
There is no expressing how common—and ruinous—illegal recruitment fees are to prospective H-2A workers. According to John Sarraf, a fraud prevention manager with the U.S. Consulate General in Monterrey, Mexico, where the most H-2A visas in the world are processed, the typical cost of an illegal recruitment fee for a job that actually exists in the U.S. is around $2,000, which is almost what some Mexican workers make in a year. In cases of pure fraud, where recruiters have sent workers to the consulate for H-2A visas and jobs that don’t actually exist, hopeful workers have been robbed of as much as $8,000.
Recruitment fees are illegal according to H-2A regulations, though very common in the program. Data gathered by advocacy organizations suggests that illegal recruitment fees are going up, far exceeding the $2,000 cited by Sarraf. According to the 2020 report “Ripe for Reform” from CDM, 26% of the 100 H-2A workers the group interviewed said they paid illegal recruitment fees as high as $4,500. In another CDM report from 2013, 58% of H-2A workers surveyed said they paid an illegal recruitment fee.
Despite being tied to much of the fraud in H-2A, the U.S. government has allowed labor recruiters to play an outsized role in the program by giving them unprecedented power to decide who gets to be an H-2A worker. Recruiters are such a known issue that even government officials overseeing the H-2A program refer to them as a problem. Mike Rios, a regional agricultural enforcement coordinator with the DOL overseeing the Southeast, which currently employs about 30% of H-2A workers nationwide, says many recruiters simply behave as “traffickers.”
“Unfortunately, recruiters take advantage of the most needy, the desperate, the ones who will give someone almost anything they own … for the opportunity to work in the U.S.,” said Rios, noting that in some cases, workers have given recruiters the deeds to their homes.
During COVID-19 pandemic lockdowns, when farmworkers were said to be “essential workers,” the already inadequate mechanisms monitoring the H-2A program only worsened—depending on who you ask. According to Sarraf, there was no “seismic change in the fraud landscape during the pandemic,” and COVID actually helped the State Department “find newer, more modern and more creative ways” to prevent fraud on the front end of the H-2A process. Evy Peña, the campaigns director at CDM, told Prism, Futuro Investigates, and Latino USA that online fraud and scams related to recruiting became worse than she’d ever seen during the pandemic. It’s also become harder for organizations like hers to inform workers of their rights.
Previously, CDM conducted “know-your-rights” trainings for workers in the plaza outside of the consulate office in Monterrey. Now that the consulate does not uniformly require workers to come in for in-person interviews or to get their photographs and fingerprints taken, workers have become infinitely more vulnerable to abuse.
“Consular officers would ask them if they had paid fees or faced other recruitment abuse,” Peña said. “This means that there are hundreds of thousands of workers who are traveling to the U.S., many of them for the first time, who don’t know what their rights are.”
Sarraf said his office is still conducting in-person interviews based on a “set of criteria” but declined to offer specifics on the criteria or the percentage of H-2A workers who speak to a consulate official. According to Peña and CDM, fewer than 10% of H-2A workers are doing in-person visa interviews right now.
Despite these structural problems, it’s worth noting that there is overwhelming bipartisan support for the H-2A program. The reasons for this are varied. Perhaps most important: migrant workers in the program do not permanently stay in the U.S. and are not otherwise granted a pathway to citizenship or any other permanent status. Their visas typically last around six months, and then they return to their home country. The agricultural lobby is also one of the most powerful in the country, and despite broad GOP opposition to many other expansive immigration programs, a considerable number of Republican members of Congress have ties to the sector. Even businesses associated with former President Donald Trump, the most vocally anti-immigrant president in modern American history, have regularly relied on guest worker programs. As of January, a Trump family-owned vineyard in Charlottesville, Virginia, was looking to hire 35 H-2A workers.
The stories of agricultural workers like Diego and Mario, who have to choose between their families in Mexico and what seems like stable work and decent wages in the U.S., have become normalized. However, these are cautionary tales about the inherent dangers of a U.S. government program that allows unscrupulous players to funnel desperate and vulnerable migrant workers to American employers who have been granted unparalleled power over their lives and livelihoods. Meanwhile, the government agency tasked with overseeing the H-2A program doesn’t have the resources necessary for proper oversight or to protect migrant workers’ rights. What could go wrong?
As it turns out, everything.
“An opportunity like this won’t come again”
Before he heard about the H-2A program from a local man who recruited people to legally work in American fields, Mario had never seriously considered going to the U.S. He had a wife, two young children, and a humble house that he built out of sheet metal with his own two hands. But it was also true that persistent poverty had worn him down. It’s one thing to struggle on your own; it’s quite another to envision a similar life for your children.
Mario’s hometown was so remote that the nearest school was two hours away. He didn’t want his kids to also trade in their childhoods and education for jobs, so he and his wife moved their family to a larger city where schooling was more accessible. This was when Mario and Diego met working at a bakery. The two men became fast friends. Both are Indigenous and the eldest of three siblings, and both married young and had children. That’s where the similarities end.
Diego, who’s in his late 20s, is extroverted and wears flashy tennis shoes and skinny jeans. Mario, in his late 30s, is standoffish and shy. Diego zooms through life, taking each day as it comes. Mario is more introspective and is prone to becoming emotional. Still, they share a special bond that is more like a brotherhood. This is why it wasn’t difficult for Mario to convince Diego to enter the H-2A program with him. Diego was also sick of struggling to support his wife and 5-year-old daughter on the $60 a week they made at the bakery.
But it wasn’t as easy as Diego and Mario simply deciding to become H-2A workers. The labor recruiter who promised to usher them through the process charged each $2,500, which he claimed would “save their seats” and “put their name on a list.”
“Where can we borrow the money? Where can we borrow the money? Where can we borrow the money?” Mario said the question constantly whirred around his brain until family members loaned the men the funds—with interest. But given that Diego and Mario were set to make $11.46 an hour, they figured they’d have no problem repaying their families.
Now, they were free to join the ranks of countless H-2A workers whose work as part of this U.S. government program began with an illegal fee and debilitating debt. But for Diego, leaving behind his family had become infinitely more complicated.
Just before he set off to the U.S., his wife found out she was pregnant. When Diego wavered on whether leaving for six months was the right decision, Valeria, who is using a pseudonym to protect her identity, urged him on.
“An opportunity like this won’t come again,” she said. They agreed to just push through the next six months apart.
Around May 4, 2018, Diego and Mario left for the first leg of their journey to Monterrey to obtain their passports. Valeria said she remembers standing in front of Diego, pregnant and feeling “broken,” but she didn’t want Diego to know how much she was hurting or how much she would miss him. So instead, she bravely told him everything was going to be OK.
When he turned to board the bus, she broke down in tears. She told herself, “It’s for our own good.” The separation would soon feel like a blip on the radar, and when Diego returned, they would have a new baby to look forward to, and their family would be in a much better place financially.
But Diego and Mario never returned.
$7.2 million in stolen wages
Aaron Jacobson is a supervising attorney for Legal Aid of North Carolina’s Farmworker Unit, where he represents H-2A workers like Diego and Mario. During an interview at his office in October 2022, the attorney told Prism, Futuro Investigates, and Latino USA that the H-2A program’s employer requirements are very clearly outlined in the regulations.
“But what I can say as an attorney in North Carolina is that there’s a pretty glaring disparity between the program on paper and what happens in practice,” Jacobson said.
One of the biggest disparities comes from employers not paying workers what they are legally owed. It’s rare to come across an H-2A worker who hasn’t experienced wage theft. The history behind H-2A provides some insight into why Rios said wage theft is literally “baked into” how the program operates.
In 1938, the Fair Labor Standards Act (FLSA) fundamentally changed working conditions in the U.S., giving us a minimum wage, a regular work week, and overtime pay. But these benefits weren’t equally applied. The law adopted racist exclusions based on the legacy of slavery, which meant that farmworkers—who were overwhelmingly Black at the time—were excluded from basic labor protections.
The legacy of these racist exclusions continues today, ensnaring the Latinx migrant workers who now form the backbone of the agricultural industry. Farmworkers across the U.S. are still denied even the most basic federal protections, and most states still don’t have laws that allow farmworkers water breaks, access to shade, protection against extreme heat, or a livable wage.
Rios, the rare government official who speaks frankly about the issues surrounding guest worker visas, doesn’t mince words in how he characterizes the H-2A program.
“[Y]ou can see that the H-2A program literally is the purchase of humans to perform difficult work under terrible conditions, sometimes including subhuman living conditions,” Rios said.
The U.S. also has a love/hate relationship with Mexican workers, who make up the majority of H-2A workers. Agricultural labor shortages caused by World War I created an opportunity for Mexican workers to work in the U.S. Once the Great Depression hit, these workers were scapegoated and largely seen as a threat to American jobs. U.S. officials carried out mass deportations of Mexican laborers, but at the onset of World War II, these same workers were once again tapped to fill the agricultural labor void after Japanese farmworkers were forced into incarceration camps.
This led to the birth of the Bracero Program in 1942, a bilateral agreement with Mexico that allowed for the temporary entry of migrants to perform agricultural labor in the U.S. Braceros were subject to deeply inhumane conditions. Numerous oral history projects uplift workers’ voices detailing public strip searches at processing centers, where they were fumigated with the cancer-causing insecticide DDT. One of the program’s most striking injustices was the outright theft of workers’ hard-earned wages. The U.S. Department of Labor officer in charge of the program at the time, Lee G. Williams, described the program as a system of “legalized slavery.”
Throughout its 22-year history, more than 4 million Braceros worked in the U.S. until the program was abolished in 1964 over concerns of abuse and exploitation, including systemic wage theft by the Mexican and American governments. But the Bracero Program lives on in the H-2A program, which was modeled after it.
It should come as no surprise then that the same problems persist. According to CDM’s report “Ripe for Reform,” 43% of 100 H-2A workers the organization surveyed stated that the salary they received was less than what they were promised when they were recruited in Mexico. Many described being paid less than the legal wage. Moreover, attorneys and immigration experts say that wage theft in the H-2A program plays out in complex and expansive ways—through illegal fees, unpaid hours, or employers failing to reimburse workers or purposefully misclassifying them for lower-paying jobs. And in the rare cases where workers are able to surmount the difficulties of fighting for the back wages they are owed, the federal government sometimes ends up pocketing their hard-earned money, records obtained by Prism, Futuro Investigates, and Latino USA show.
Shelly Anand was formerly an “H attorney” with the DOL, hired to work on H-2A, H-2B, and H-1B cases in which employers in the Southeast were not complying with federal laws and regulations. Over the course of her work, the attorney said she noticed that the agency struggled to return back wages to H-2A workers.
“Whenever I see DOL press releases like, ‘Wage and Hour finds that $1 million in back wages is owed,’ I’m like, ‘Cool, but is that money actually going to get to the workers?’ That’s the story. That’s what I care about. That’s what we should care about,” Anand said.
Investigations done by the Wage and Hour Division (WHD), the federal agency that enforces federal labor laws, usually take years. This is a significant problem for H-2A workers who travel back and forth between the U.S. and their home country, making it difficult to pursue a wage theft claim. These workers are also transitory because of the nature of agricultural jobs. When workers do pursue a wage theft claim and win, the FLSA dictates that the DOL has three years to return back wages to workers or the funds get transferred to the U.S. Treasury Department. Three years is a significant amount of time. However, the agency overwhelmingly relies on snail mail to reach workers in rural areas that have unreliable postal services. This means that information about the money they are owed may never reach them.
Records obtained by Prism, Futuro Investigates, and Latino USA show that more than $7.2 million owed to H-2A workers between 2011 and 2021 was instead diverted to the Treasury because WHD could not find the workers owed the funds.
Most employers behind the original wage theft cases associated with the records are labor contractors, farms, and small companies that run agricultural operations nationwide. Some, like Florida’s Kenneth G. Hyatt, who does business as Hyatt Farms, not only owed H-2A workers more than $160,000 that went to the Treasury, but, according to court records, repeatedly violated H-2A regulations.
DOL coordinator Rios has personally pushed to get H-2A workers their back wages. During the early days of the pandemic, when regular WHD operations came to a halt, Rios launched an internal initiative called Operation Pay Day that temporarily tripled the number of staff in the back wages department. Rather than relying on snail mail, the team used farmworkers’ preferred mode of communication: WhatsApp. The team returned $100,000 in back wages owed to agricultural workers—including some cases going back as far as eight years and at least two instances in which the funds had already gone to the Treasury.
Still, Rios acknowledges that the $7.2 million that’s been sent to the Treasury is “shocking.”
“Here we are with this really large number owed to H-2A workers. I mean, they arguably work harder than anyone, only to have their wages stolen,” he said. “Then Wage and Hour comes around and recovers the wages, and they still don’t get the money. So, it is a terrible cycle.”
Advocates argue there is no good reason the DOL is unable to find migrant workers. The DOL says the workers can be hard to find because they are “transitory” and migrate back and forth between the U.S. and their home country or traverse the U.S. as part of their seasonal farm work—another reason why the agency should use digital communication like WhatsApp more frequently.
The DOL told Prism, Futuro Investigates, and Latino USA that the agency works with advocacy organizations and consulates to find workers and uses public information sources like CLEAR, a biometric travel document verification system. Ostensibly, workers should also be able to verify they are owed wages through WHD’s Workers Owed Wages site, a public, searchable database that allows workers to see if they have wages to claim.
Attorney Rachel Micah-Jones, CDM’s founder and executive director, says when the site first rolled out, she was hopeful it would be a powerful tool for migrant workers. Instead, she found that it doesn’t really work.
During a call with Prism, Futuro Investigates, and Latino USA, Micah-Jones looked up two employers who actively owed workers money. Neither appeared in the database. Latinx H-2A workers also have a hard time using the site because it doesn’t allow for the inclusion of multiple surnames, and workers often don’t know how employers entered their names into records.
In the end, it is WHD’s responsibility to find the workers who are owed back wages, and according to one former DOL official, part of the reason the agency struggles is because it does “very little” to enforce the H-2A rule that requires employers to keep records of their workers’ permanent contact information abroad.
“Literally every case that I’ve dealt with at DOL, the records have been terrible,” he said. “And there is very little enforcement on that specific issue, which is a little bit surprising because there are so many very specific H-2A [record keeping] requirements with money penalties potentially attached to them. It’s not a sexy … violation to highlight. It sounds really boring, but it is true that in so many of these cases, there’s no way to find the workers and no way for DOL to know how to find the workers. You see so many cases where the contact information will literally be something like ‘Oaxaca.’ That’s it.”
Another former high-ranking DOL official confirmed this. He explained that U.S. addresses listed by foreign workers are almost always “useless” because of how long WHD investigations take. By the time back wages are ready to be dispensed, the address is outdated because it was an address for a labor camp where the worker is no longer housed. He said that addresses can be hard to verify on the Mexico side, and the postal service isn’t reliable. Notices WHD sends to workers informing them of back wages may be delivered to a village without a specific home address or other locating information.
DOL does work with nonprofit organizations, but advocates say it doesn’t happen frequently enough. Organizations like Justice in Motion that have created expansive networks of human rights lawyers across multiple countries could be a greater resource for helping to get wages back to migrant workers. But Cathleen Caron, the organization’s founder and executive director, said there has to be “political will” to do this work.
“This is the work that we do, and I get that it’s hard,” Caron said. “How much time and effort can some Department of Labor official spend on finding one Honduran worker that went back and is owed $500? It’s just not resource efficient … But there’s so much wage exploitation out there. And then on top of that with foreign workers, you have this foreseeable, predictable result that the worker leaves the country. So, why aren’t we thinking about mechanisms to ensure access to justice for when they leave?”
In March, the DOL’s Bureau of International Labor Affairs announced a joint effort with the Mexican ministry called the H-2A Workers’ Wages Recovery Program to help return $6.5 million in back wages to 13,000 H-2A workers. The DOL failed to disperse these funds because the agency could not locate the workers who were owed wages. According to reporting from CNN, the U.S. is expected to send Mexico a list of workers’ names who are owed wages, and the Mexican government will locate the workers in their databases and inform them of their checks. Rios confirmed that the back wages in the newly announced effort come from the same pool of money—the $7.2 million owed to all H-2A workers spanning various countries—outlined in records obtained by Prism, Futuro Investigates, and Latino USA in the fall of 2021. The cases also span the same period, 2011-2021.
While wage theft has become normalized in the H-2A program because of the frequency with which it occurs, Andrea Rojas said the issue should be taken seriously because it is often linked to labor trafficking.
Rojas is the director of strategic initiatives at Polaris, an organization dedicated to ending the practice of human trafficking. Since 2007, the organization has operated the U.S. National Human Trafficking Hotline, data from which formed the basis of a recent report that offered one of the most comprehensive portraits of how trafficking and abuse have become endemic to guest worker programs. Through the hotline, Polaris identified 15,886 victims of labor trafficking between Jan. 1, 2018, and Dec. 31, 2020, 72% of whom were foreign nationals in the U.S. on a guest worker, exchange visitor, or diplomatic worker visa. The majority of the victims in Polaris’ dataset were men from Mexico.
“Wage theft is the most common method of control in agriculture,” Rojas said, noting that the structure of the H-2A program creates a “perfect storm” for abuse because workers are completely disconnected from their support networks in their home countries and forced to rely on their employer for food, housing, and transportation. Speaking out means risking it all.
“A cost-benefit analysis”
Abuse in the H-2A program is hard to quantify because the program’s structure makes it incredibly risky and difficult for workers to file complaints. The tools offered by WHD also aren’t ideal for farmworkers, leaving the government with little concrete data on the extent of the problems.
WHD’s online complaint process isn’t very mobile-friendly, and cell phones are farmworkers’ lifelines. The complaint form also requires information that may seem easy but is quite complicated for H-2A workers. For example, how does an H-2A worker list the labor contractor or the farmer or grower in the required “work sector” section? Does the H-2A worker list their “zip code” or “city and state” as their labor camp or where they live in their home country? All of this assumes that the farmworker can read and write or that they speak Spanish, which is not Indigenous workers’ dominant language. Workers can also call the DOL to file a complaint, but oddly, “file a complaint” isn’t one of the options listed by the agency’s automated voice messaging system.
There is another option, which is to have someone contact the DOL on a worker’s behalf. Grassroots organizers, advocacy organizations, and groups that do outreach and provide pro bono legal services in farmworker communities often fill this gap. In North Carolina, Legal Aid’s Farmworker Unit has done outreach for 40 years, especially during peak H-2A season in the spring and summer when the state has the most agricultural guest workers. This is what led Jacobson to first meet Diego and Mario. The attorney said farmworker outreach is the primary way organizations like his learn directly of crimes committed against H-2A workers. But workers rarely want to take action.
“I think they’re just doing like a cost-benefit analysis in their heads,” Jacobson explained. “Like, you know, I could report this, but then I could get fired. That’s gonna be a hardship.”
Money was a constant worry for Diego and Mario, even after obtaining the loans they needed to pay their illegal recruitment fees. Delays requiring overnight stays along their route meant that well before the men arrived in the U.S., they had virtually no money. So in Monterrey, when something deeply alarming happened, it felt too late to turn back.
Mario and Diego’s recruiter instructed them not to tell U.S. officials that they had given him any money. The conversation happened in a hotel in Monterrey where Diego and Mario were gathered along with hundreds of other men hoping for their H-2A visas. This is where they caught their first glimpse of the Mexican-American labor contractor who obtained DOL clearance to bring them to work on North Carolina blueberry farms. The recruiter had set up a sort of makeshift office in the hotel where he instructed the men on what to say at their consulate interviews.
Prior to COVID, all prospective H-2A workers were required to go to a U.S. consulate where they were interviewed by a State Department official, who—among other questions—would ask if they paid a recruitment fee to enter the program. It’s a necessary question, but it’s also impractical for detecting fraud. By the time a prospective H-2A worker is sitting in a consulate office, many have gone into massive debt because of an illegal recruitment fee. The only way for them to repay the debt is by being able to legally work in the U.S. Why, then, would they honestly answer a question that would ultimately derail their H-2A job and demolish their financial future?
Diego told Prism, Futuro Investigates, and Latino USA that because of fear and his “ignorance” regarding the workings of the H-2A program, he and Mario did as they were instructed and didn’t tell the consulate they paid recruitment fees. When they were both granted their H-2A visas, they could feel the relief coursing through their bodies.
“Everything looked in order,” Diego said—after all, he had official paperwork from the U.S. government. “So, who would ever doubt it? Who would ever think something was wrong?”
When they finally arrived at the filthy, overcrowded labor camp in North Carolina where they were to work for the summer, they quickly realized that something had gone terribly awry. Food was also an issue. Like all H-2A workers, Diego and Mario were entirely reliant on their employer for food and transportation, and it was their employer’s legal obligation to provide both. The employer mostly did neither, and because the men were wholly unfamiliar with their surroundings, they spent their first full day in North Carolina searching on foot for nourishment. Hours later, they returned to the labor camp, unsuccessful. By this point, they hadn’t eaten in 12 hours.
Someone associated with their employer eventually took workers to a nearby grocery store. Diego and Mario pooled their money, so they had just enough to buy ingredients to make ham and cheese sandwiches. Once those supplies ran out, they had nothing but the clothes they brought from Mexico.
Maybe they could endure this mess if money was to be made, but Diego and Mario heard from H-2A workers who arrived before them that they hadn’t worked in weeks. Things got worse when the labor contractor convened a meeting and told the H-2A workers they would not be paid an hourly minimum wage as promised by the recruiter.
H-2A employers must pay workers the higher of the federal or state minimum wage, the “prevailing wage” as determined by the DOL using a methodology that factors in wage surveys for particular jobs in specific regions, or something called the Adverse Effect Wage Rate (AEWR). This is the regional, weighted average hourly wage rate for field and livestock workers combined, as measured by the Department of Agriculture’s (USDA) annual Farm Labor Survey. The AEWR is intended to guarantee that guestworkers do not “adversely affect” the wages of U.S. workers. Workers paid by the piece should still earn at least as much as they would if they had been paid by the hourly wage rate because employers are required to pay the higher of the minimum wage or a worker’s piece rate earnings.
The wage paid to most farmworkers with H-2A visas is the AEWR. It’s always been low—especially considering many farmworkers don’t receive overtime pay—but the wages forced on Diego and Mario were actually illegal. In 2018, the guaranteed hourly wage for an H-2A worker was $11.46. The labor contractor paid Diego, Mario, and the other H-2A workers a piece rate of $2.50 per bucket of harvested blueberries—regardless of the number of hours they worked.
Diego and Mario were just two of hundreds of H-2A workers their labor contractor hired that spring. According to court documents, as starving workers received news of the unlawful wages, they began to flee their labor camps.
Those who remained behind were shocked to learn that the blueberries they were in the U.S. to pick weren’t even mature enough to harvest. During one workday that began at 5 a.m., Diego earned just $10. Several days later, H-2A workers were driven to the blueberry fields and then simply forced to wait around for six hours. Legally, they should have been compensated for that time, but their employer didn’t treat it that way.
Diego began to send his wife Valeria panicked, desperate WhatsApp messages detailing how hungry he was, how little he worked, and how controlling his employer was. Some of the men they worked with had also grown desperate. They were spotted on the main road near the labor camp, trying to flag down passing cars to ask if they could work in exchange for food. The news somehow reached a local human trafficking organization, leading to a phone call to Legal Aid of North Carolina’s farmworker unit. All of this unfolded in the nick of time, just as Diego and Mario’s employer threatened to confiscate their passports.
Crushing power dynamics
According to attorneys, advocates, and even some government officials who spoke to Prism, Futuro Investigates, and Latino USA, the structure of H-2A and other guest worker programs creates a crushing power imbalance between American employers and foreign workers. Workers’ visas are tied to a single employer, so filing a complaint or speaking out against things like wage theft is incredibly risky.
“[T]he fact that they are tied to this one employer—oftentimes, not every time, but oftentimes—means that they are stuck, absolutely stuck,” Rios said. “I think until we are able to remove the shackles of being tied to one employer, we’re going to continue to see these bad players in the industry take advantage of these workers.”
Little stops a retaliatory employer from firing a worker, which renders them undocumented and subject to deportation. Indeed, it is not unusual for an employer to threaten a call to Immigration and Customs Enforcement (ICE) on workers who sound the alarm on abuse or attempt to flee harm. In the H-2A program, the stakes are even higher because employers are responsible for providing workers with housing and access to transportation and food. Severing ties with an abusive employer doesn’t just leave H-2A workers jobless and undocumented, it leaves them completely adrift in a foreign country. With no money to return home, some end up on the streets or permanently separated from their families.
“Once they are separated from that employer, they’re no longer a guest here—and that’s a very important benefit for probably every client I’ve had. They really value the ability to come here with status, and so they’re going to do whatever they can—until they can’t—to preserve the ability to come back the next year. Because they’re also threatened that if they leave, they’re going to be ‘quemado,’ or basically blacklisted,” Jacobson explained.
Jorge, a 34-year-old from Mexico who was in the program from 2013 to 2019, said he experienced wage theft and other violations on every farm he worked. The former H-2A worker requested Prism, Futuro Investigates, and Latino USA only use his first name because he, too, feared retribution for speaking out against a U.S. government program.
During his initial experience with wage theft on his first H-2A job, Jorge said he turned to North Carolina’s farmworker union, the Farm Labor Organizing Committee (FLOC), for help. He eventually received around $7,000 in back wages, but he alleges this was only a percentage of what he was actually owed.
“I didn’t push it any further,” said Jorge, noting that other men he worked with received between $12,000 and $13,000. “My brother was also in the program, and I didn’t want us to experience retaliation.”
Now, Jorge wishes he’d fought for the full amount of back wages he was owed. For the last four years, he’s struggled to provide for his wife and two young children in Mexico, where he is trying to cobble together a living by working in a factory and doing side jobs like plumbing, carpentry, painting, and construction.
Jorge quit the H-2A program in 2019, having grown tired of the wage theft and mistreatment. As the violations he experienced piled up and he continued to speak out, he said employers began to think of him as a troublemaker. He still wonders if this is why he was relegated to increasingly grueling and dangerous work.
Jorge hit his limit while working on a tobacco farm in North Carolina. Each work day began at 7 a.m. and ended at 8:30 p.m., rain or shine, Monday through Saturday—and he worked on until 2 p.m. on Sundays. The final straw came when he was accidentally sprayed in the eyes with a pesticide by two other workers who were “playing around” on the job. The accident left him with blurry vision.
Unlike Diego and Mario, Jorge wasn’t pushed to pay a recruitment fee to work in the program, but even many of those who don’t pay the illegal fees still go into debt to be H-2A workers. According to a 2013 report from CDM, 47% of H-2A workers surveyed took out a loan to cover pre-employment expenses.
During his first year in the program, Jorge said he took out a loan to cover his visa and travel expenses, which included a bus from his home in Guanajuato, Mexico, about eight hours north, to Monterrey for his interview at the consulate. He also had to pay out of pocket for his bus to the U.S.
“I was more or less in debt for about $1,000 before I even arrived in the U.S., in addition to having my heart broken for having to leave my family,” Jorge said. “Year after year, I ended up in debt … We are willing to pay to get out of Mexico because life is hard here, and there’s a lot of crime, and we want a better life for our families. In Mexico, people say one thing about what it’s like [in the U.S.], but when you get there you find out that the reality is something else. On the H-2A job, they push you and harass you, and they threaten to report you to immigration—they did that to me. Me and many other people feel scared speaking out because when you do, you are punished.”
“You can throw a rock and hit a violation in the agricultural industry”
Rios told Prism, Futuro Investigates, and Latino USA that employer compliance levels in the agricultural industry have historically been very low. According to the government’s own data, agriculture is one of the top low-wage, high-violation industries in the U.S., with nearly 11,000 H-2A employer violations in FY 2022.
“You can throw a rock and hit a violation in the agricultural industry,” Rios said—and he would know. Prior to his current role, he spent 15 years as an investigator with WHD, where he looked into farmworker complaints and ensured that agricultural employers were in compliance with federal regulations. But complaints from farmworkers in the agricultural industry are rare. In addition to their fears of retaliation from employers, Rios said, workers are also uncomfortable approaching a government agency.
Yet those H-2A workers who have chosen to speak have provided some of the most striking public data about the conditions farmworkers face. To gather data for CDM’s report “Ripe for Reform,” members of the organization conducted extensive interviews with 100 Mexican H-2A workers who had participated in the program within the previous four years. An astounding 100% of these workers suffered at least one serious violation of their rights—including workers who said they were satisfied with their experience in the program. And 94% of workers surveyed experienced three or more serious legal violations, defined as violations of legal rights with a substantial impact on their wages or working conditions.
Attorney and CDM founder Micah-Jones told Prism, Futuro Investigates, and Latino USA in a phone interview that most people—including many who work in the immigration field—do not understand how the H-2A program really works and how its “serious structural flaws” lead to human rights violations. Micah-Jones recalled one worker who told her about a coworker being interviewed by a DOL official while their employer’s attorney sat in the room.
“DOL is not designed to be a trusted resource for workers,” Micah-Jones said. “Workers don’t always think authorities have their best interests in mind.”
CDM’s founder and executive director said it’s also true that DOL is understaffed and under-resourced, but the agency could be more effective at addressing abuse in agriculture—especially in a program like H-2A where the U.S. gives employers tremendous control over workers’ lives.
There is no overstating how under-resourced and understaffed the federal agency is. According to a December 2020 report by EPI, WHD had “just under 1,500 employees, including 780 investigators, and a budget of $229 million to investigate 10.2 million U.S. establishments with 148 million employees” the previous year. The number of workers that each individual WHD investigator is responsible for has also risen dramatically. In 1978, EPI reported one WHD investigator for every 69,000 workers. By 2018, one investigator was responsible for 175,000 workers.
Rios told us that, as of last year, WHD had between 600 and 700 investigators total—and only a percentage of those could carry out agricultural investigations because they require additional specialized training.
The weak investigative power has serious implications for farmworkers. EPI found that farm employers have a 1.1% chance of being investigated by WHD in any given year. When WHD does investigate a farm, they find employment law violations in 70% of cases, according to 15 years of data analyzed by EPI. One H-2A worker who spoke to Prism, Futuro Investigates, and Latino USA said that in his 11 years in the H-2A program, he’d never encountered an investigator with the government. After experiencing extreme wage theft in his last H-2A job, he ultimately decided to leave the program and stay in the U.S., becoming part of the 49% of U.S. farmworkers who are undocumented.
COVID-19 has been devastating to agricultural workers, as oversight and enforcement of the H-2A program fell by the wayside during the pandemic. WHD largely stopped doing in-person investigations in 2020. By the end of 2021, WHD conducted just 562 agricultural investigations impacting H-2A workers. According to WHD investigative files obtained by Prism, Futuro Investigates, and Latino USA, the agency conducted some H-2A housing inspections virtually—including with at least one H-2A employer known for deceptive practices.
Those files show that a Florida labor contractor obtained 50 H-2A workers in 2021 to harvest blueberries sold to retailers like Walmart, Publix, Kroger, and Harris Teeter, despite previous H-2A violations across multiple states related to a form of wage theft called “cost shifting,” in which an employer shifts the costs they are responsible for onto workers. In one such case, he was ordered to pay H-2A workers more than $200,000 in back wages. During the 2021 investigation, the contractor had two invoices from the State Department’s visa appointment service showing he paid $9,500 to cover the cost of the 50 H-2A workers’ visas. However, WHD found that the labor contractor was once again engaging in cost shifting. He had the workers pay out of pocket for the visa fees by wiring the money to his company in Mexico.
All along the H-2A program, mechanisms are supposed to exist to preemptively spot and stop fraud, abuse, and potential labor violations. Even when spotted, however, investigating an allegation can take years—leaving workers’ lives hanging in the balance. Take, for example, one of the largest, most extreme cases of visa fraud and labor trafficking ever documented in the H-2A program: Operation Blooming Onion.
In November 2021, news broke revealing an extensive international operation that ensnared H-2A workers in “modern-day slavery” on southern Georgia farms. Migrants from Mexico and Central America were forced to dig for onions with their bare hands under the threat of gun violence, according to the federal indictment, earning just 20 cents for each bucket of onions harvested. At least two people died from heat exposure on the job, and one woman was repeatedly raped. The victims’ labor camps were surrounded by electric fencing, or they were otherwise held in cramped and unsanitary mobile homes with raw sewage leaks and no access to food or safe drinking water.
In an interview with Prism, Futuro Investigates, and Latino USA, Sarraf, a State Department fraud prevention manager, characterized Operation Blooming Onion as a “huge interagency success story” that led to the most “consequential series of indictments” against forced labor ever seen in the H-2A program. The seeds of the investigation began in Monterrey as part of his consulate’s pre-screening effort, according to Sarraf. It appears authorities began investigating the case in November 2018, though the federal indictment says that, “[f]rom at least 2015,” the perpetrators began fraudulently using the H-2A program to allegedly smuggle foreign nationals from Mexico, Guatemala, and Honduras and sought more than 71,000 H-2A visas.
North Carolina nightmare
Operation Blooming Onion may seem like an extreme outlier, but the case included violations that have become too common in the H-2A program: illegal recruitment fees, labor trafficking, wage theft, intimidation, threats of immigration enforcement, and passport confiscation. These violations seem to run rampant in the Southeast, where the DOL has launched campaigns to raise awareness about agricultural labor trafficking and to improve compliance among growers and farmers.
Investigators in the DOL’s Southeast region found violations in 78% of the more than 280 investigations conducted in 2020. During the same period, the division debarred seven Southeast growers and farm labor contractors from participating in the H-2A program. Under U.S. law, employers who commit substantial violations can be banned from receiving H-2A workers for up to three years. Yet Mario and Diego’s experience in North Carolina raises larger questions about cases the public may never hear about and the untold numbers of workers who suffer in silence.
It’s unclear why the DOL approved the labor contractor in Diego and Mario’s case to successfully obtain more than 1,000 H-2A workers in 2018, given that his operation appeared to include what Sarraf described in an interview as known markers for fraud. Many of the H-2A workers the contractor obtained for the season were new to the program, for example, and his application contained signs of what Sarraf called “petition padding.” This is when an employer requests more workers than are actually necessary. The labor contractor, working in partnership with three North Carolina farmers, sought to employ a total of 1,442 H-2A workers as part of two different blueberry work orders for the 2018 season—a 350% increase in the size of their H-2A workforce over the previous year.
Court documents show that the labor contractor had participated in the H-2A program since 2013. Though he had no fixed-site agricultural operation of his own, he was able to procure “massive contracts relative to [the contractor’s] size and experience to furnish labor to various North Carolina farms.” Also striking, the labor contractor had been on DOL’s radar before.
Records obtained by Prism, Futuro Investigates, and Latino USA show that on April 30, 2018—days before Diego and Mario arrived in North Carolina—the Office of Foreign Labor Certification recommended that the labor contractor be barred from the program for three years due to H-2A violations. At the end of May, shortly after Diego and Mario were forced to flee their labor camp in the middle of the night, the contractor requested a hearing that ultimately led to a settlement agreement. The notice of disbarment was withdrawn.
Mario’s and Diego’s lives could have been so different if officials took stricter action. But instead, their safety hinged on a call that North Carolina Legal Aid received about farmworkers begging on the road for food. Jacobson said when he heard about the call, he assumed the farmworkers were undocumented because employers are required to provide H-2A workers with food or access to food.
“[I]t just seemed kind of particularly bizarre in the context of the H-2A program,” Jacobson said. “I never heard anything like that before.”
After receiving the call, members of Legal Aid’s Farmworker Unit rode out to the labor camp. Every once in a while when an employer is violating the rights of a group of workers, Jacobson said there can be a sort of “grassroots swelling where everyone is pissed off” and willing to speak out. This wasn’t happening at Diego and Mario’s labor camp. The men were afraid, and they remained silent.
But Mario overcame his shyness and did something unheard of for a farmworker in his situation, Jacobson said. He stood up in front of all of his co-workers and told Legal Aid what was happening.
Mario’s decision to speak out wasn’t an easy one. The workers’ employer instructed them not to talk to anyone who came around asking questions. Mario said it was hard to know whom to trust. But at that point, Mario felt like he didn’t have much of a choice. He and Diego knew they had to escape. Their employer said he was going to confiscate their passports and told them he would call immigration if they fled. They’d reached a point of no return.
“The fear left me,” Mario said. “And I just started to say all of the things we were living through.”
The following morning, Jacobson said Legal Aid received a call from the men: they wanted legal representation, and they wanted help escaping.
Because Diego, Mario, and the other men were closely watched by their employer, getting away was difficult. After they decided to pursue legal action, they lied about leaving to get groceries so they could meet with Jacobson at a roadside truck stop.
Jacobson bought Diego and Mario some burgers, their first hot meal in days, and explained that their case would be even stronger if they proved wage theft on top of everything else. The men agreed to stay at the camp one more day until they were paid. The following night around 11 p.m., Jacobson said he received a series of WhatsApp messages from Diego, “the evidence collector.” He sent rapid fire photos of workers’ fraudulent pay stubs that listed fake hours and fake rates. Their employer also forced the men to sign a form verifying their wages. Diego used a fake signature to certify he was owed just $45 for more than a week of work, hoping it would signal that it was fraudulent.
The following night, the anti-human trafficking organization that first alerted Legal Aid to the situation helped Diego, Mario, and some other workers break out. At midnight, the men walked down the long, dirt road away from their labor camp, which was hidden in plain sight and not far from the state capital. Their hearts soared when they saw the minivan in the nearby church parking lot that shepherded them away from their North Carolina nightmare.
Five years later, the men told Prism, Futuro Investigates, and Latino USA they still find themselves grappling with a question: How did this happen inside of a U.S. government program?
“They’re going to kill me”
For decades, workers and advocates have pushed for reforms to the H-2A program that would better protect migrant workers against exploitation and abuse. Many of their recommendations focus on giving workers more control over the place they’re employed and the right to change employers.
Reforming the H-2A program doesn’t appear to be an issue that’s on President Joe Biden’s radar. Rather, his administration plans to reduce migration to the southern border by expanding the H-2A program to bring in more workers from Central America. It’s part of a larger strategy under Executive Order 14010, signed in February 2021. At the Summit of the Americas in Los Angeles last year, The Nation reported that Biden outlined his plan to “halt the dangerous and unlawful ways people are migrating” by helping “American farmers bring in seasonal agricultural workers from northern Central America[n] countries under the H-2A visa program.”
To workers and advocates, this is a deeply troubling development—and not just because the administration has failed to include H-2A workers in working groups focused on the expansion of the program, according to Micah-Jones. Rather, it’s because the populations of Central Americans migrating to the southern border are overwhelmingly people who are seeking asylum, fleeing the trafficking and abuse that have become endemic in the H-2A program.
Attorney Daniel Costa, an expert on guest worker visas and the director of immigration law and policy research at the EPI, said it’s an “unfortunate” decision that the Biden administration is managing “humanitarian flows of people” by channeling them into “indentured servitude programs.” Costa told Prism, Futuro Investigates, and Latino USA that it’s important to think about what will happen to would-be asylum-seekers placed in a temporary visa program where they will earn wages and then return to their home countries.
“[T]hey’re going to be going back to a country that they fled because of corruption or maybe because of gang extortion or maybe because they’re being persecuted. Maybe somebody in their family was murdered. [And] you’re going to send them back to that situation with dollars in their pockets, which I think is just going to make them targets for extortion,” Costa said.
Costa’s concern isn’t just a theory. It’s already playing out.
Several years ago, Jacobson had a Honduran guest worker client with one of the strongest cases he’d ever encountered because of its paper trail. Jacobson estimated the worker was owed at least $40,000 in unpaid wages, and Jacobson said he could have argued for liquidated damages under the law, resulting in a potential $80,000 payday.
But the good news didn’t land the way Jacobson expected it to because the worker was afraid of the recruiter in Honduras who got him into the program.
“This $80,000 was an inconceivable amount of money to him,” Jacobson said. “But ultimately, he decided not to go forward with the case. He said, ‘You just don’t understand. They’ll kill me. They’re going to find me, take me out of my house, kill me, and leave me in some shrubs. No one’s going to find me again.’”
As far as H-2A horror stories go, Diego and Mario have fared better than most.
Jacobson’s office helped them bring a lawsuit against their labor contractor and other employers behind the blueberry operation, who admitted no wrongdoing but settled the case last year. Diego and Mario each received around $10,500 as part of the lawsuit. With that money, they were able to pay back what they’d borrowed from family members to cover the cost of their recruitment fees. But there wasn’t much remaining afterward to start a new life with.
Diego and Mario have remained in the U.S. since escaping from the H-2A program, a requirement as they awaited their T visas, special visas for immigrant victims of trafficking that they received last year. They are currently roommates and work in the same restaurant. For five long years, they have been separated from their families. They maintain their relationships with their wives and children through video calls. Diego has never met his son.
And because there is no interim status for those awaiting an immigration benefit like a T visa, their employer’s ultimate threat became their reality: Diego and Mario spent years undocumented. This means they could have been subject to deportation.
That’s the real crux of the problem with the H-2A program: Even though they were fleeing starvation, wage theft, labor trafficking, and everything else, it’s Mario and Diego who’ve had the most to lose. Not the employer. Not the recruiter. The victims.
A year before Mario and Diego arrived in the U.S., another group of H-2A workers sued the same labor contractor who had recruited them. Those workers alleged they’d also been victims of wage theft and other crimes at a North Carolina sweet potato operation, according to court records obtained by Prism, Futuro Investigates, and Latino USA.
In 2021 the labor contractor was banned from the H-2A program for two years, but since then, more than a dozen H-2A workers have consulted with Jacobson’s office to pursue claims against the contractor after the contractor was barred from the program. Whether his eviction from the program actually put him out of business, however, is far from clear. Jacobson suspects that he may be using an alias, or he may have entered into an arrangement with another agricultural employer that allows him to continue operating in the H-2A program under the radar.
DOL has been notified of these concerns. According to our investigation, no action has been taken.