Abstract

Excerpted From: Dexter L. Woods, IV, The Thirteenth Amendment's Uninvited Guest: Unmasking the Constitutional Dilemma of the H-2a Guest Worker Program in the United States, 39 Georgetown Immigration Law Journal 93 (Fall, 2024) (137 Footnotes) (Full Document)

Agricultural workers play an indispensable role in the American economy. Their work allows the everyday American to access the most basic necessities like food and clothing. The United States has had a history of hiring foreign workers, mostly from Mexico, to satisfy the consistently high demand for agricultural workers. The earliest of these programs, The Bracero Program, began in 1942. This program was a series of diplomatic agreements between the United States and Mexico that permitted Mexican men to work in the United States on a short-term basis, in order to fulfill specific agricultural shortages during World War II. Although the program ended in 1964 due to the mechanization of many agricultural jobs, it became the impetus for the H-2A visa program that exists today. As Mexican workers continue to remain an important part of the U.S. agricultural landscape, large-scale migration can be drawn back to the Bracero Program. Though the criticism of the H-2A program is well warranted, it is undoubtedly one of the most utilized pathways to working in the United States as a migrant worker: The H-2A program provides visas to the largest number of temporary workers in the United States.

Migrant labor in the United States has remained a vital underpinning of American society. This role has been recognized by administrations and federal lawmakers for decades in America. The recognition of the importance of migrant labor is what led to the Bracero Program's inception. During the mid 1900s, millions of Mexican agricultural workers came into the United States to labor as farm workers through the governmentally sponsored Bracero Program. Although the Bracero Program provided meaningful employment and wages for many Mexicans, it was accompanied by a dark underbelly of treating the workers as less than human. As the “Braceros” - the term coined to refer to these workers - entered the border in Texas, they were sprayed with the now-banned pesticide DDT. Braceros were forced to undergo fumigation for lice with harsh pesticides, likening them to livestock being sprayed down before slaughter.

The wider American society viewed Braceros as less than human.

When the Bracero Program ended in the 1960s, the numbers of immigrants coming to the United States for work did not stop growing. Over 12,000 workers were admitted to the United States between 1960 and 1980 under a provision within the Immigration and Nationality Act (INA). This provision, the “H-2” visa, granted temporary visas to migrants coming to the United States for temporary employment. As more and more migrants began taking advantage of the program, the enforcement over the living conditions and wages faltered. This permitted labor violations to go both unnoticed and unpunished.

Recognizing the growing issue, Congress passed an amendment in 1986 to the INA which divided the pre-existing H-2 visa program into two separate categories: H-2A visas, provided to migrants coming to the United States for agricultural work; and H-2B visas, provided to migrants coming to the United States for seasonal non-agricultural employment. By separating the two visa programs, Congress hoped to more acutely monitor the labor conditions within each visa environment. This monitoring system has ended in failure, as explained later.

While securing an H-2A visa is a straightforward process, it is riddled with corruption and exploitative undertones. To begin an application for an H-2A visa, the farmer employer must file an application with the Department of Labor's Employment and Training Administration (ETA) stating that there is an insufficient number of workers who are willing to complete the work for which they are seeking. The farmer employer must present to the government a need to hire agricultural workers before H-2A visas can be granted to applicants for work on that farm. Furthermore, the farmer employer must present proof that it has exhausted all efforts to fulfill the employment needs by utilizing citizens of the United States. Only then can the government officially recognize the need for H-2A laborers, and subsequently grant those visas. Thus, the jobs which are to be granted to H-2A laborers are the jobs that, presumably, no U.S. citizen wants. H-2A workers are recruited for employment that even U.S. citizens outright refuse. Once the government recognizes the need for workers, it may begin selecting applicants for H-2A visas to fill those employment positions. While the farmer employer is presenting its case to the government for workers, H-2A recruiters are hard at work in Mexico making promises of “free housing,” “fair wages,” and reimbursement for loans to interested H-2A applicants. Although U.S. law prohibits recruiters from charging recruitment fees for the H-2A visa, these recruitment fees are regularly charged and collected. Once the employer's labor needs are matched with an applicant's petition filed by a recruiter, the visa is provided and the H-2A worker enters the United States to begin working.

It is important to note that the entire process of granting an H-2A visa is exclusively dependent upon the employer. While the soon-to-be employees are often recruited in their home countries by H-2A employment recruiters, the employers are the ones who hold the power in beginning and maintaining the application process for an H-2A visa. This inherent characteristic of the process is where often exploited vulnerabilities are embedded at the expense of the employee. In the application of the Thirteenth Amendment to the characteristics and nature of the program, this paper will flesh out the unsettling nature which exists in the H-2A visa program and resembles the power structure present in indentured servitude.

[. . .]

As the United States continues struggling to ensure equal protections for all, Congress must continue to consider and implement ways of protecting migrant workers in the United States on H-2A visas. Through an application of the badges and incidents test promulgated by Carter, it becomes evident that these programs bear unsettling resemblances to slavery. By establishing this connection to slavery through the invocation of the Thirteenth Amendment, Congress is within its constitutionally delegated authority to take measures to increase protections for these workers. These measures must be aimed at providing redress to injury resulting from the worst conditions facing H-2A workers today including wage theft, unfair labor practices and coercion, and debt bondage. Through a meaningful interpretation of the Thirteenth Amendment's jurisprudential scope within the American labor industry and a successful application of this scope to the labor conditions in which H-2A workers are subject to, an adequate and justified solution may be reached that promises the constitutionally required protections for H-2A workers.

Georgetown Law, J.D. 2025.