May 16, 2012

V. A Dysfunctional Immigration System

International human rights law requires that basic rights protections apply to all persons in a state’s territory, including authorized and unauthorized non-citizens. This is critical to protecting US citizen workers, as well as non-citizen workers, because it minimizes employers’ incentives to hire easily exploitable immigrant workers.[185]

Yet when immigrant farmworkers experience sexual violence and harassment, many choose not to report these abuses under either civil or criminal law. Many factors discourage farmworkers from reporting abuses, including the desperation that comes from poverty and lack of community support, but one of the most significant is their immigration status. Whether they are working without authorization or with guestworker visas, immigrant farmworkers live with a constant fear of deportation.

Several farmworkers we interviewed reported that fear of deportation was a major reason they chose not to report sexual violence, sexual harassment, or other workplace abuses.[186] Even some farmworkers with work authorization who had filed sexual harassment claims said they would not have done so had they been unauthorized.[187] Some attorneys pointed out that fear of deportation is particularly acute for women with children, as they fear separation from their US citizen children and loss of ability to support their families.[188]Another legal services lawyer noted that fear of deportation can also affect the willingness of witnesses to participate in investigations.[189] Blanca Rodriguez, an attorney representing farmworkers in a sexual harassment lawsuit, reported that the foreman in the case had worked at the company in question for more than 40 years and had sexually harassed women the whole time, but the women had not reported it because they were unauthorized and afraid.[190]

Uncertain immigration status both increases worker vulnerability to exploitation and diminishes their willingness to interact with government officials. Although reporting employees to immigration authorities for asserting workplace rights constitutes illegal retaliation, workers still have reason to fear that employers may do so. The increasing involvement of local law enforcement in immigration enforcement further fuels worker fears that contact with the police could lead to deportation. Should they nevertheless decide to file a civil claim, unauthorized workers face a system that treats them differently from other workers, from more limited access to legal services to limited remedies. The US government, instead of directly addressing the problem, continues to delay much-needed immigration reform and enables the industry’s reliance on a vulnerable workforce.

Limitations of the Current Immigration System

When people ask about food justice, I tell them you have to go contact your congressman about immigration.
—Sandy Brown, Human Resources, Swanton Berry Farm, California, July 21, 2011.

Currently, the only way to migrate legally to the US for agricultural work is through the H-2A temporary agricultural worker program.[191] In 2011 there were about 68,000 H-2A guestworkers in the US, only a small percentage of the total agricultural workforce.[192] Advocacy organizations such as Farmworker Justice and the Southern Poverty Law Center have criticized the H-2A program for permitting age and gender discrimination.[193] None of the farmworker women interviewed for this report stated they were H-2A workers.

The H-2A program is unpopular with both employers and farmworker advocates. Employers argue that the program is too limited and complicated to meet their labor needs. When applying for H-2A visas for workers, employers must certify that they are unable to find domestic workers and that bringing in guestworkers will not adversely affect the wages and working conditions of US workers.[194] H-2A visa holders are allowed in the US for a limited period of time, generally less than 10 months, and then are required to go back to their home countries before they may return.

Farmworker advocates criticize the program for failing to protect workers’ rights and for encouraging employers to prefer vulnerable guestworkers over US workers. H-2A visa-holders are dependent on their employers to remain in the US, as they are not allowed to transfer the visa to other employers.[195] There is no way for an H-2A guestworker to become a permanent resident, and unauthorized workers already in the US cannot regularize their status through the H-2A program. The H-2A program contains some requirements regarding wages, housing, and transportation that are intended to protect guestworkers from workplace abuses. But guestworkers are also explicitly excluded from protection under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), meaning they have no right under the AWPA to sue in federal court for lost wages, housing benefits, and other requirements of the H-2A contract.[196] Like other agricultural workers, they also have no right to collective bargaining.[197]

In view of these limitations, some farmworker advocates believe that, despite their legal status, H-2A workers can sometimes be even more vulnerable to workplace abuses than unauthorized immigrant workers. Some of the most egregious cases of forced labor in the US have involved H-2A workers whose employers held them in virtual slavery.[198] Jenifer Rodriguez, a legal services lawyer, has found that “[H-2A workers] have no power…. They’re so isolated, too. They don’t have the local support…. They’ll tell me horrendous stories of propositions [a grower] makes, but they’ll never want to do anything about it.”[199] One lawsuit filed in August 2011 in Louisiana alleges that Mexican female workers who came on H-2A visas to work in a crawfish processing plant were subject to sexual propositions by the employers, as well as threats of violence, nonpayment of wages, forced labor, and racial discrimination.[200] The lawsuit further alleges that the employer requested that the local police department detain two of the plaintiffs, and that they were then detained unlawfully.[201] 

Given the limitations of the H-2A program, farmworker advocates, as well as employers, have pushed for legislation that would both revise the H-2A program and create a program of earned legalization for unauthorized farmworkers already in the US. The Agricultural Job Opportunities, Benefits, and Security Act, or AgJOBS, was negotiated by farmworker advocates, led by the United Farm Workers, and major agricultural employers, and it initially enjoyed broad, bipartisan support.[202] Now, almost 10 years later, it is no closer to passing than it was when it was first introduced in 2003. It was last included in a comprehensive immigration reform bill in 2011, but the current political climate makes it unlikely that any comprehensive immigration reform bill will pass Congress in the near future.[203]

In response, Congress has recently debated several different bills proposing revisions to the H-2A guestworker program.[204] While the precarious immigration status of many farmworkers can only be fully addressed through comprehensive reform, reforming the H-2A program to be more protective of workers’ rights would help to ensure greater workplace safety for farmworkers, including prevention of sexual violence and harassment.

The Government’s Competing Interests: Immigration Enforcement versus Worker Protection

In recent years, the federal government has ramped up enforcement of immigration laws, and the Obama administration has presided over a record number of deportations.[205] According to a 2009 report by the National Employment Law Project (NELP), these immigration enforcement actions have had serious repercussions on efforts to protect workers’ rights.[206] US Immigration and Customs Enforcement (ICE) has conducted high-profile workplace raids where worker’s rights investigations are ongoing; ICE agents have even masqueraded as Occupational Safety and Health Administration (OSHA) agents and held information sessions where they then arrested the attendees; and local police have arrested workers at employers’ requests and then turned them over to immigration authorities.[207] One farmworker interviewed by Human Rights Watch was deported while her sexual harassment lawsuit against her employer was pending, and she feared her employer had reported her to immigration to intimidate her.[208]

There is a fundamental conflict between the priorities of ICE and the priorities of worker protection agencies such as the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and others. ICE has taken some important steps to address the conflict, but they do not fully address the scope of the problem.

The DOL recently updated its Memorandum of Understanding (MOU) with ICE to provide greater protection to unauthorized workers. The updated memorandum states in part, “ICE agrees to refrain from engaging in civil worksite enforcement activities at a worksite that is the subject of an existing DOL investigation of a labor dispute during the pendency of the DOL investigation and any related proceeding.”[209] However, no similar agreements have been made with other agencies that enforce workplace rights—such as the EEOC, which would most likely handle sexual harassment claims—or with state labor agencies. It is thus unlikely that ICE would be on notice of a worker whose claim is being investigated by other federal or state agencies.[210]

A recent ICE memorandum also sets out guidelines for how prosecutorial discretion should be exercised in cases involving victims and witnesses of crimes and individuals seeking to protect their civil and labor rights. It states, “Absent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”[211] The memorandum, however, does not set out a policy of screening immigrants to determine if they would qualify for an exercise of prosecutorial discretion under this memorandum, and immigrants would have to affirmatively provide this information to ICE agents. Although attorneys who know about the prosecutorial discretion memorandum might provide this information to ICE, immigrants in removal proceedings do not have a right to court-appointed counsel, and thus many who would qualify for an exercise of prosecutorial discretion may never be identified as such.

The Department of Homeland Security’s Operating Instruction 287.3 also requires ICE agents to determine whether information concerning the employment of undocumented individuals was provided to ICE in an effort to interfere with the rights of employees to “form, join or assist labor organizations or to exercise their rights not to do so; to be paid minimum wages and overtime; to have safe work places; to receive compensation for work related injuries; to be free from discrimination based on race, gender, age, national origin, religion, handicap; or to retaliate against employees for seeking to vindicate these rights.”[212] Advocates in at least one case have successfully used the Operating Instruction, as they were able to persuade ICE agents and local police officers who had been called by the employer to leave a deposition during a wage claim dispute,[213] but other incidents described to NELP by advocates around the country indicate that agents have not been trained on the Operating Instruction.[214]

As important as it is for ICE to enact MOUs and follow its own memoranda and operating instructions, these policies can only be applied if workers report workplace abuses. All too often, unauthorized immigrant workers are too afraid to report abuses altogether, and these policies are not triggered.

Limitations of U Visas

Certain provisions of US immigration law recognize that fear of deportation may intimidate victims from reporting crimes. Where sexual violence or harassment includes rape, trafficking, sexual assault, or certain other violent crimes, the victim may be eligible for a U visa, a temporary visa that allows the victim to gain legal status in the US and, in some cases, eventually apply for permanent resident status.[215] The visa is not available for survivors of sexual abuses that are not among the listed crimes. U visas are currently capped at 10,000 per year; that cap was met in fiscal years 2010 and 2011, only a few years after the visa was first made available.[216]

Several farmworkers we interviewed had applied or were in the process of applying for U visas. Legal services organizations funded by the federal Legal Services Corporation are generally barred from representing unauthorized immigrants but are permitted to represent those who are eligible for U visas, and so the availability of the visa has been critical in enabling some farmworkers to get legal representation.[217]

However, several law enforcement representatives and survivor advocates expressed concern and frustration with the U visa application process, particularly the requirement of certification by a law enforcement official or judge that the victim “has been helpful, is being helpful or is likely to be helpful to a certifying agency in the investigation or prosecution” of a crime.[218] Survivor advocates report that certifying agencies have interpreted this provision in varying and inconsistent ways across jurisdictions. Ileana Herrera, a survivor advocate in Fresno, California, says some police complain they are signing certifications for “green cards” and accuse victims of “using [crimes] to get an immigration visa.”[219] They also sometimes interpret “cooperation” narrowly and arbitrarily. In one case, an advocate complained that the police refused to certify that a victim had cooperated because they had not been able to reach her, though she had been in a shelter.[220] Ana Vallejo, a legal services lawyer in Florida, described a case in which a survivor of domestic violence had called the police, who then came and arrested everyone in the household and never investigated the allegation of domestic violence. The woman, although a victim of a crime, is now in immigration proceedings with no documentation that an investigation was ever conducted, and thus no ability to apply for a U visa.[221]

Interpretation can be inconsistent even between agencies in the same locality. While the Riverside County District Attorney recently implemented a new policy that allows for certification of a wide range of cases, based on a literal interpretation of the regulations,[222] a victim advocate reported that the Riverside County Sheriff’s Department refuses to certify any U visa applications.[223]

From the perspective of some law enforcement officials, the federal government has not provided enough guidance on what is required for certification. Rachel Sorratos at the Salinas Police Department stated, “There was nothing, no assistance. I did my research online. I don’t even know who to call.”[224] Pamela Patterson at Victim Services at the Monterey County District Attorney’s Office agreed that there is widespread misunderstanding about what the U visa is.[225]

The EEOC and the DOL also have the authority to certify U visa applications, but advocates have been disappointed with the DOL’s decision to limit certification to only five crimes it detects in the course of wage and hour investigations: involuntary servitude, peonage, trafficking, obstruction of justice, and witness tampering;[226] advocates had hoped it would certify crimes of physical violence and perjury as well. With regard to the EEOC, one attorney reported that the process is cumbersome and slow, and “it daily undermines the protective function of the visa while the worker is making critical decisions to go forward.”[227]

Another major limitation of the U visa is that it provides no protection for unauthorized witnesses who are not direct or indirect victims of the crime.[228] Even if the victim is willing to go forward, the threat of deportation can hinder the investigation by keeping witnesses from testifying. Attorney Jenifer Rodriguez explained that she has seen that fear at work in her own legal work, with witnesses in one case claiming they forgot what had happened. As she explained of one of the witnesses, “[H]e was trying to lay low and not draw attention to himself in a small community.”[229]

[185] The US Supreme Court stated in De Canas v. Bica, 424 US 351, 356-57 (1976), “[A]cceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.”

[186] Human Rights Watch interviews with Claudia L. (pseudonym), California, June 2011; Maria A. (pseudonym), California, June 2011; Marisol Z. (pseudonym), New York, August 2011; and Mercedes A. (pseudonym), New York, August 2011.

[187] Human Rights Watch interviews with Lucia A. (pseudonym), California, April 2011; and Natalia B., Magdalena C., Ana D., and Soledad E. (pseudonyms), California, April 2011.

[188] Human Rights Watch telephone interviews with Daniela Dwyer, Staff Attorney, Florida Legal Services, Migrant Farmworker Justice Project, May 12, 2011; and Mercedes Lorduy, Attorney, VIDA Legal Assistance, May 18, 2011.

[189] Human Rights Watch telephone interview with Jenifer Rodriguez, Staff Attorney, Colorado Legal Services, August 5, 2011.

[190] Human Rights Watch telephone interview with Laura Contreras, Attorney, Columbia Legal Services, and Blanca Rodriguez, Attorney, Northwest Justice Project, March 17, 2011.

[191] 8 US Code Section 1101(a)(15)(H)(ii)(a); 20 Code of Federal Regulations Sections 655 et seq.

[192] US Department of Labor, “H-2A Temporary Agricultural Visa Program, FY 2011 Select Statistics,” http://www.foreignlaborcert.doleta.gov/pdf/h_2a_selected_statistics.pdf (accessed February 23, 2012).

[193]Farmworker Justice, “No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers,” September 2011, http://farmworkerjustice.org/images/stories/eBook/pages/fwj.pdf (accessed March 6, 2012); Southern Poverty Law Center, “Systematic Discrimination,” in “Close to Slavery: Guestworker Programs in the United States,” April 2007, http://www.splcenter.org/get-informed/publications/close-to-slavery-guestworker-programs-in-the-united-states (accessed March 5, 2012).

[194] US Department of Labor, Wage and Hour Division, “Fact Sheet #26: Section H-2A of the Immigration and Nationality Act (INA),” February 2010, http://www.dol.gov/whd/regs/compliance/whdfs26.htm (accessed February 24, 2012).

[195] Farmworker Justice, “Fact Sheet: The H-2A Temporary Agricultural Guestworker Program,” http://farmworkerjustice.org/var/www/html/files/H-2AFactSheet.pdf (accessed February 24, 2012).

[196]Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 US Code 1801-1872. See also Farmworker Justice, “No Way to Treat a Guest,” September 2011.

[197] National Labor Relations Act Section 2(3), 29 US Code Section 152(3).

[198] For example, the H-2A recruitment company Global Horizons Manpower, Inc. is currently being prosecuted for human trafficking and enslavement. US v. Orian et al., Indictment, No. 1:10-CR-576 (Dist. Hi., filed September 1, 2010). See also Farmworker Justice, “No Way to Treat a Guest,” September 2011.

[199]Human Rights Watch telephone interview with Jenifer Rodriguez, Staff Attorney, Colorado Legal Services, August 5, 2011.

[200]Huerta et al. v. L.T. West, Inc., et al., Complaint and Jury Demand (W.D. La. August 31, 2011), Case 6:11-cv-01589.

[201]Huerta et al. v. L.T. West, Inc., et al., Complaint and Jury Demand (W.D. La. August 31, 2011), Case 6:11-cv-01589.

[202] Agricultural Jobs, Opportunity, Benefits and Security Act of 2003 (AgJOBS), H.R. 3142 and S. 1645.

[203] Comprehensive Immigration Reform Act of 2011, S. 1258.

[204]Helping Agriculture Receive Verifiable Employees Securely and Temporarily (HARVEST) Act of 2011, S. 1384; American Specialty Agriculture Act of 2011, H.R. 2847; Legal Agricultural Workforce Act of 2011, H.R. 2895.

[205]Brian Bennett, “Obama administration reports record number of deportations,” Los Angeles Times, October 18, 2011, http://articles.latimes.com/2011/oct/18/news/la-pn-deportation-ice-20111018 (accessed April 3, 2012).

[206] National Employment Law Project, AFL-CIO, and American Rights at Work Education Fund, “ICED OUT: How Immigration Enforcement Has Interfered with Workers’ Rights,” October 2009, http://nelp.3cdn.net/75a43e6ae48f67216a_w2m6bp1ak.pdf (accessed February 29, 2012).

[207] National Employment Law Project et al., “ICED OUT: How Immigration Enforcement Has Interfered with Workers’ Rights,” October 2009.

[208] Human Rights Watch interview with Angela G. (pseudonym), California, June 2011.

[209] US Department of Labor and Immigration and Customs Enforcement, “Revised Memorandum of Understanding Between Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites,” December 7, 2011, http://www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf (accessed February 5, 2012).

[210]Human Rights Watch telephone interview with Eunice Cho, Skadden Fellow, National Employment Law Project,
April 5, 2012.

[211]US Department of Homeland Security, US Immigration and Customs Enforcement, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,” June 17, 2011, http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf (accessed April 6, 2012).

[212]Department of Homeland Security Operating Instruction 287.3, “Questioning Persons During Labor Disputes,” http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-53690/0-0-0-61072/0-0-0-61097.html (accessed April 7, 2012).

[213] National Employment Law Project et al., “ICED OUT: How Immigration Enforcement Has Interfered with Workers’ Rights,” October 2009,

[214]Human Rights Watch telephone interview with Eunice Cho, April 5, 2012.

[215]Immigration and Nationality Act Section 101(a)(15)(U), 8 US Code Section 1101(a)(15)(U)(i).

[216] “USCIS Reaches Milestone: 10,000 U Visas Approved in Fiscal Year 2010,” US Citizenship and Immigration Services news release, July 15, 2010, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5d5d58a734cd9210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed March 7, 2012); “Relief Provided to Thousands of Victims of Crimes,” US Citizenship and Immigration Services news release, September 19, 2011, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ea0c39d112b72310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD (accessed March 7, 2012).

[217] Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, Sec. 504 (11), 100 Stat. 1321.

[218] 8 Code of Federal Regulations Section 214.4(b)(2).

[219]Human Rights Watch telephone interview with Ileana Herrera, Project Advocate, Marjaree Mason Center, July 22, 2011; follow-up to in-person interview, Fresno, California, April 8, 2011.

[220] Human Rights Watch telephone interview with Ileana Herrera, April 8, 2011.

[221] Human Rights Watch telephone interview with Ana Vallejo, Attorney, VIDA Legal Assistance, May 6, 2011.

[222] Human Rights Watch interview with Lachelle Crivello, Victim Services Assistant Director, Riverside County District Attorney’s Office, Riverside, California, August 9, 2011.

[223]Human Rights Watch interview with victim advocate (name withheld), Riverside, California, August 2011. The Riverside County Sheriff’s Department stated in a subsequent email communication, “The Riverside Sheriff’s Department receives and reviews all certification of U Visa applications submitted. They are reviewed by the area commander in which the application was requested.  Each request is taken into consideration in the applicants [sic] eligibility for U Visa certification.” Email communication from Deputy Alberto Martinez, Public Information Officer, Riverside County Sheriff’s Department, to Human Rights Watch, April 11, 2012. Human Rights Watch asked how many U visa certifications had been granted in the past 5 years. As of the date of publication, the Sheriff’s Office had not responded to this query.

[224] Human Rights Watch telephone interview with Rachel Sorratos, Salinas Police Department, June 20, 2011.

[225] Human Rights Watch interview with Pamela Patterson, Victim Witness Assistance Program Manager, Monterey County District Attorney’s Office, California, June 16, 2011.

[226]US Department of Labor, Wage and Hour Division, “Field Assistance Bulletin No. 2011-1: Certification of Supplement B Forms of U Nonimmigrant Visa Applications,” April 28, 2011,  http://www.dol.gov/whd/FieldBulletins/fab2011_1.htm (accessed February 23, 2012); National Employment Law Project, “Protection for Immigrant Victims of Workplace Crimes: United States Department of Labor Protocol for U Visa Certification,” May 3, 2011,  http://www.nelp.org/page/-/Justice/2011/ProtectionforImmigrantVictimsofWorkplaceCrimes-Uvisas.pdf?nocdn=1 (accessed February 23, 2012).

[227] Human Rights Watch telephone interview with legal services attorney (name withheld), April 29, 2011.

[228] Human Rights Watch telephone interviews with Jenifer Rodriguez, August 5, 2011; and Ana Vallejo, May 6, 2011. The “S” visa is available in a limited way to non-citizens who cooperate in investigations of criminal or terrorist organizations. 8 US Code Section 1184(k)(1).

[229]Human Rights Watch telephone interview with Jenifer Rodriguez, August 5, 2011.