UN Special Rapporteur offers sharp criticism of American temporary foreign worker programs
On December 19, one day after International Migrants’ Day, Maria Grazia Giammarinaro, the United Nations Special Rapporteur on Trafficking in Persons, Especially Women and Children, issued a statement regarding her official visit to the United States to assess the country’s state of affairs on human trafficking. During her trip, Giammarinaro met with government officials, diplomats, trafficking survivors, and representatives from civil society. While she praised the United States for developing “an impressive number of laws and initiatives which focus on the protection of victims,” especially the Victims of Trafficking and Violence Protection Act and its subsequent reauthorizations, she offered up sharp and insightful criticisms of the nonimmigrant visa programs that temporarily authorize migrants to work in the United States:
The legal framework governing temporary visas for migrant workers, especially H-2A visa for temporary or seasonal agricultural work and H-2B visa for temporary or seasonal non-agricultural work visas, is of particular concern as it exposes applicants to the risk of exploitation, including human trafficking. Workers holding these temporary visas are tied to a specific employer who can exercise extensive control over them. Employers often confiscate passports, withhold wages, terminate contracts arbitrarily and threaten employees with job loss and deportation. Some live in deplorable housing conditions, commute long distance and enjoy low benefits. This is a serious problem in itself, but it is exacerbated by the fact that concerned workers may fear that if they report abuses, they will be deported or denied future visa applications. This situation creates vulnerabilities to labour exploitation, such as unsafe working conditions and isolation, especially in rural areas where there are fewer service providers. In order to prevent further harm, it will be essential to amend the regulation governing these temporary visas, as well as to those of Exchange visitor (J-1) and domestic workers (G-5) visas, and make visa “portable” to allow workers to change abusive employers.
Giammarinaro goes on to mention problems arising from fees charged by labor recruiters and recruitment agencies that connect migrants abroad to employers and jobs in the United States:
Moreover, I am concerned that many recruitment agencies offer lower wages and benefits and charge future employees with recruitment fees. While some companies, notably in the electronic industry, have taken actions to address trafficking in their chains of supply, Federal authorities should better support business’ efforts to establish and implement an unequivocal no fees policy. In many cases, workers can find themselves in an inextricable situation that makes reporting human rights violations, or voluntarily returning to their home countries impossible because of the debts they incur from recruitment agencies’ fees, which often also includes migration and settlement expenses. A viable solution needs to be put in place to allow workers to report human trafficking without being afraid of losing their jobs or being deported. A confidential procedure protecting the workers’ identity and privacy could be put in place to allow them to report abuses to law enforcement officers, while at the same time receiving services they are entitled to if they are recognized victims of human trafficking.
These passages highlight the reasons many migrant and worker advocates are critical of temporary foreign worker programs: their structure and the employment relationship they create are inherently exploitative and leave migrant workers nearly powerless to defend and uphold their rights because of fear of retaliation and deportation, and the fees charged to migrant workers for employment opportunities leave them indebted and indentured to their employers and recruiters.
The Special Rapporteur’s findings come as no surprise to organizations that work to defend migrant workers against trafficking and advocate for the reform of temporary foreign worker programs—including the Southern Poverty Law Center, the National Guestworker Alliance, and Farmworker Justice, as well as unions like the AFL-CIO, which simultaneously represent members working on temporary visas and advocate on their behalf at the national level. Nevertheless, international recognition that U.S. temporary foreign worker programs are flawed and dangerous for workers and in desperate need of reform from a world-renowned expert on trafficking and human rights is a welcome validation of the importance of their work.
Analyzing temporary foreign worker programs at the macro level and their nexus with trafficking, however, is especially challenging due to a lack of publicly available data. Giammarinaro’s statement also relays her finding that in the United States:
…data on trafficking is either lacking or collected in an uncoordinated manner, which in turn adversely impacts the understanding of the extent and prevalence of trafficking in persons in the US. I thus call on the authorities to develop a systematic and comprehensive data collection using common indicators and disaggregated data with a view to implementing a greater human rights oriented anti-trafficking response.
It’s no secret that many cases of sex and labor trafficking in the United States are facilitated through temporary foreign worker programs, including major ones like the H-2A, H-2B, H-1B, and J-1 visa classifications. (For example, this report from the anti-trafficking group Polaris shows a breakdown of calls and texts to their trafficking hotline by visa classification.) Yet it is nearly impossible for a journalist, a member of the public, or even a U.S. Senator to acquire reliable data on temporary employment visas to help in anti-trafficking efforts or to investigate worker abuses, even when it comes to the most basic information about occupations, salaries, or the names of employers who hire workers on temporary visas and their worksite locations.
The U.S. government actually collects much of this information, but does so in an ad hoc fashion and inconsistently across federal agencies. Moreover, these agencies (especially the State Department and the Department of Homeland Security) make very little of this information available to the public—while also failing to collect and store much of it electronically—so it would be nearly impossible to disseminate even if policies were changed or the government were forced to release the data through a Freedom of Information Act request.
A simple fix to this is the Visa Transparency Anti-Trafficking Act, a bipartisan piece of legislation introduced in both the House and the Senate, which could go a long way towards fixing the transparency deficit identified by Special Rapporteur Giammarinaro. The bill would require standardized publication of key data that U.S. federal agencies already collect on nonimmigrant visas that authorize employment, in an accessible electronic format. Turning this bill into law would not fix America’s flawed temporary foreign worker programs, but at the very least it would help inform the public debate around these programs and equip anti-trafficking advocates with vital information they need to carry out their work. Members of Congress should make the bill a priority if they care about the fight against human trafficking.