Migrant Worker Labor Rights - Labor Rights Week

There are a variety of visa categories that allow for nonimmigrants to work in the U.S., the most prominent of them all are the H-2A and H-2B visa programs.

The Immigration and Nationality Act allows for the lawful admission into the United States of temporary, nonimmigrant workers to perform agricultural labor or services of a temporary or seasonal nature, with the H-2A visa. 

H-2A workers cannot work for more than a year unless there are exceptional circumstances, whereas H2B workers can work for more than a year if it is a one-time occurrence.

The H-2B visa program allows for U.S. employers to temporarily hire for jobs in the nonagricultural sector, employment must be of a limited term, such as a one-time occurrence, seasonal need, peak-load need, or intermittent need. To learn more about the differences in each visa program visit here.

As a migrant worker in the United States, you have rights that are enforced under the Department of Labor, no matter your immigration status. 

Labor Rights:

• The right to form/join a union - your employer should not coerce, restrain, or interfere with you and your coworkers’ decisions to form a union
• The right to be paid the applicable minimum wage for all hours worked and on time. 
• The right to a safe work environment.
• The right to be treated without discrimination and harassment.
• The right to question your employer’s pay and workplace practices.
• The right to file a claim without fear of retaliation.

This visa program can expose certain individuals to employers who do not have their best interest in mind, they will inordinately hold power over workers – power that data shows is often used to abuse and exploit. All a trafficker needs to do to exert control is to threaten to have a worker deported. By being aware of your rights and red flags from potential employers you can be further protected. 

Red Flags from Employers:

• Charging a fee for recruitment is illegal. You may be entitled to recover those recruitment fees. Employees should not allow their recruiters to charge fees. If you paid a recruiter a fee in your home country, your employer must reimburse you the entirety of that money in your first paycheck.
• The employer does not have a temporary labor certification submitted to the Department of Labor (DOL)
• Your employer holds onto your personal documents.
• Unsafe or unhealthy working conditions
• Not providing free and safe housing or transportation. 
• If the employer controls your housing and you need to ask for permission to leave the property on your off time. 
• If you are recruited, harbored, transported, provided, or obtained for labor, services, by someone using force, fraud, or coercion, that would be human labor trafficking.
• Your employer must provide you with a written document in a language you understand describing the terms of your job, wages, and deductions you should expect in your paycheck. 
• Late wage payment - your employer must provide you with your earned pay on time. 
• Your employer must provide you with safety instructions in a language you understand.
• Employers should pay for personal protection equipment.

You have rights no matter your current immigration status.

To learn more about how to make a claim or learn more about what employers should provide you through your visa program, visit here.