Does the H-2 Visa Program Need an Overhaul?

By Maheen Nadeem, J.D. Class of 2023

In 2021, the Supreme Court held in Cedar Point Nursery v. Hassid that for union organizers to temporarily access farmland in order to speak with migrant farmworkers was an unconstitutional taking of property.1 The California statute being challenged in this case allowed these organizers to meet with farmworkers at a pre-scheduled time outside of work hours to inform them about their rights to unionize.2 Migrant farmworkers are often holders of H-2A visas, which are temporary non-immigrant visas that allow migrants to perform seasonal agricultural work under a specified employer, without a path to permanent residency.

The nature of the H-2 visa can limit its holder’s ability to assert their rights against an employer for fear of deportation.3 For this reason, the Cedar Point decision has pressing implications for H-2A workers in accessing and being informed of their economic rights especially since several of these workers are legally underpaid and undereducated. This raises questions about the systems underlying the H-2 visa program and whether they need an overhaul to properly safeguard protections for a particularly vulnerable group of workers in this country.

Critics of the H-2 visa program agree that the program needs some reconstruction in order to prevent worker exploitation. In particular they cite the “chilling” of migrant workers’ labor rights, since visa status is tied to the employer.4 If a worker loses their job, they can be deported, thereby disincentivizing migrant workers to speak out about poor working conditions. There is also very little oversight in the enforcement of labor standards, due to a lack of resources and procedure from the Department of Labor.5 At the same time, in the last decade, H-2A visas have tripled, with further expansion of the program expected in the future.6 With numbers growing, it is more crucial than ever to ensure fair labor standards are met.

Other considerable abuses under the program include human trafficking, one notable example called “Operation Blooming Onion.” In this case, Mexican and Central American farmworkers in Georgia onion farms arrived under H-2A regulations but were then subject to brutal working conditions where at least two of the workers died.7 Agents of this scheme made $200 million over three years while leaving workers were left collecting 20 cents for every bucket of onions among other basic rights violations.8 To evade state minimum wage laws, the agents called the workers independent contractors rather than actual employees.9 Cases like these can lead to multiple incidents of fraud if enforcement of protections after-arrival is not made a priority.

Now, Cedar Point could make it even harder for migrant farmworkers to unionize for better conditions generally, especially in one of the lowest paying professions in the country.10 However, congressional action legislating federal pay standards specific to seasonal workers, greater local enforcement measures, or pathways to permanent resident status could potentially be a step toward alleviating some of the concerns of this program. Even aiming to prevent restrictions to access and awareness of union rights on farms is a worthwhile measure to try to elevate migrant farmworkers’ quality of life in a system that has the power to structurally harm them.

[1] Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2066 (2021).

[2] Id.

[3] Worker Advocates Argue H-2 Visa Programs Need Serious Reforms, SHRM (July 27, 2022), https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/h2-visa-programs-need-serious-reforms.aspx.

[4] Daniel Costa, Second-class workers: Assessing H-2 visa programs’ impact on workers, EPI (July 20, 2022), https://www.epi.org/publication/second-class-workers-assessing-h2-visa-programs-impact-on-workers/#epi-toc-22.

[5] Daniel Costa, Agricultural employers are asking the Supreme Court to make it harder for farmworkers suffering from poor pay and working conditions to unionize, EPI: Working Economics Blog (Mar. 23, 2021, 3:37 PM), https://www.epi.org/blog/agricultural-employers-are-asking-the-supreme-court-to-make-it-harder-for-farmworkers-suffering-from-poor-pay-and-working-conditions-to-unionize/.

[6] Costa, supra note 4.

[7] Drew Favakeh, Operation Blooming Onion: Federal indictment reveals ‘modern-day-slavery’ in Georgia, USA Today (Dec. 1, 2021), https://www.usatoday.com/story/news/2021/12/01/u-s-attorney-trafficking-operation-georgia-onion-farms/8738135002/.

[8] Id.

[9] Id.

[10] Costa, supra note 5.