“You came here to suffer, not for vacation,” farm workers at Sarbanand Farms in Sumas, Washington were warned during the blueberry harvest in 2017. As wildfires choked the Pacific Northwest, workers were told by upper management that unless they were on their “deathbed” they could not call in sick, and they were repeatedly threatened that if they did not meet a specific production quota they would be fired. On August 4, 2017, a farmworker named Honesto Ibarra who worked at Sarbanand was hospitalized. Honesto died three days later. 

In 2020, in Georgia, Christhian Hernandez, Luis A Lopez and Ramon Mendez who were also hired to harvest blueberries, were “lent” by their employer to work on a watermelon farm. Their employer was paid $15.00 per hour for their labor on the watermelon farm, while Christhian, Luis, Ramon, and others were paid only $7.00 per hour. When one of the workers called the police their employer told them, “fucking idiots, you guys do not have rights here,” before assaulting them. 

Honesto, Christhian, Luis, and Ramon were all brought to the United States under the H-2A program, often referred to as a guestworker program, which is designed to fill labor shortages in the agriculture industry by providing short-term visas for workers. The program has grown significantly in the past decade, and with it reports of abuse. In 2013 the Southern Poverty Law Center published a report on the program, which included a quote from the then House Ways and Means Committee Chairman Charles Rangel, who stated that the H-2A program is “the closest thing I’ve ever seen to slavery.” In the decade since,  H-2A workers and government officials alike have continued to liken the program to modern day slavery, which begs the question—who are the masters? 

To begin to answer this question it is necessary to understand the legal framework governing the program’s existence, including who legally employs H-2A workers, analyze the program’s position within the agribusiness supply chain, and consider the program’s history and global context. First, who an H-2A worker is legally employed by is not always clear.  H-2A workers are increasingly legally employed by farm labor contractors, not the farmer, grower, or landowner who is ultimately profiting from the H-2A worker’s labor. Farm labor contractors, “proverbial middlemen” are sandwiched in between larger and more sophisticated growers and agribusiness, and create a legal layer or remove between H-2A workers and the growers they labor for, thereby protecting growers from legal liability.

This structure makes effective labor organizing more challenging, and the relative power imbalance between the labor contractors and the larger agribusiness actors strongly incentivizes labor contractors to break the law to break even. Although there are instances of legal accountability for wage theft and other violations in the H-2A program, farm worker advocates are certain that many violations go unreported. This underreporting is compounded by the narrowness of the pathway to legal recovery, rendering legal accountability challenging. The result: extreme exploitation and repeated allegations that the program amounts to little more than slavery.

The result: extreme exploitation and repeated allegations that the program amounts to little more than slavery.

Earning large profits by utilizing structurally precarious workforces composed of workers who are exploitable and vulnerable is a tactic that has been repeatedly relied upon by American companies. Since the end of the Civil War when slavery, the most vivid and violent example of this model, was formerly outlawed in the United States, other legal models of worker exploitation have been relied upon to drive corporate profits.

In the late nineteenth and twentieth centuries coal mining companies leveraged a model commonly known as the “company town” to exert power over their workers. In company towns corporations could control worker housing, restrict worker movement and curtail workers’ economic capacity by issuing wages in a company scrip, only good for use at company stores.

Later, during World War II the United States created the Bracero Program—the predicate to the H-2A program—a bi-lateral agreement between the United States and Mexico that brought over 4 million farm workers to the United States.  The program was terminated in 1964 as a result of chronic rights violations including wage-theft, virulent racism, and abuse. Nevertheless, the growers who relied on Bracero labor were able to produce “enormous wealth” as a result of the program, as growers were able to use Braceros to keep wages low and to break strikes of local farm workers. 

 When I asked Gregory Schell—a lawyer and long-time migrant advocate who has litigated hundreds of cases on behalf of migrant workers, including a case against Florida sugar growers on behalf of migrants for millions of dollars in lost wages—about the apparent trend of legal models of worker exploitation Schell nuanced the historical trend noting “this is a problem across the world.” Indeed, many European countries have guest-worker programs, and several Gulf States utilize what is known as the Kafala System, a program that bears many similarities to the H-2A program.

“Keeping workers vulnerable and exploitable makes more money.”

In Canada the government has operationalized a program nearly identical to the H-2A program, with similarly harmful outcomes. In September 2024 a Quebec Superior Court authorized  a class action lawsuit brought by Canadian seasonal agricultural workers against the Canadian government for unjust enrichment. The class members are seeking over 500 million dollars in damages arising from the government’s unjust enrichment due to the members’ payment into an employment insurance scheme, the benefits of which they are unable to access.

Shane Martínez, an attorney for the plaintiffs, noted that tied employment—where a worker’s visa is tied to a single employer— ensures worker precarity, which is “a practical approach in a profit motivated system.” Martínez emphasized “[k]eeping workers vulnerable and exploitable makes more money.”

Like the Seasonal Agricultural Worker Program in Canada, the H-2A program is a form of tied employment, which among other things, means H-2A workers can’t seek other employment if the conditions are unsatisfactory. Employers weaponize this status with threats of deportation or non-renewal of workers’ contracts if workers complain about intolerable working conditions, kickbacks, or wage theft.  Schell, who has primarily represented H-2A workers employed by growers in the Southeastern part of the United States, recounted a story a worker had told him of the brazen nature of this weaponization. The worker had confronted a foreman, asserting that he and his fellow workers were not making enough money and that they were not being paid correctly. The foreman replied, “you’re right, but you know I have the magic pen.” The foreman explained “the magic pen is the pen that I write out the names of the workers who are going to return next year, and when the pen comes to the name of the troublemaker or a complainer, it runs out of ink.”  

The farm labor contractors who employ H-2A workers weaponize their complete—structurally created—dependence upon them and as a result, H-2A workers rarely contest their conditions. Andrea Schmitt, an attorney for Columbia Legal Services in Seattle, Washington who has worked on many class action lawsuits on behalf of H-2A and other farm workers told me that the “threat of do not rehire lists, and the threat of retaliation is so baked into every single part of the whole [program] because of the ties to a single employer and the way in which recruitment systems work in Mexico that [H-2A workers] just won’t stick their necks out at all.”

Schmitt is currently working on a case where she hasn’t been able to get a single H-2A worker to give testimony about what a drop in wages would mean for their life, for fear that such testimony would result in their termination, deportation, and placement on a do-not rehire list. These lists are managed by farm labor contractors and not just single farms, meaning that labor contractors who manage recruitment in Mexico often do so often for many growers and owners, such that being placed on a list could mean that a worker had a hard time finding any new H-2A contract. 

Despite its tarnished reputation, the H-2A worker program is growing. In the early 2000s the number of H-2A workers remained steady, with between 50,000-80,000 jobs approved annually for H-2A positions and even fewer visas issued. Since 2013 however, when the number of jobs certified first reached 100,000, the number of H-2A workers coming each year has risen steadily, with close to 400,000 jobs approved and 315,530 visas issued in 2024. 

The H-2A program’s popularity is due both to employer preference, and on paper, the program has benefits or opportunities that have historically appealed to both Democrats and Republicans. However, recent efforts by the Department of Labor to address some structural issues in the program has been met with industry pushback. It is hard to anticipate any particulars of the new administration’s approach in light of internal differences over the H-1B, another type of temporary work visa, but it seems certain any changes will not favor workers.

The current H-2A program was statutorily created in 1986 as part of the Immigration Reform and Control Act (IRCA). Implementation challenges notwithstanding, the program does feature some protective regulation. Federal regulations require that the sponsoring employer of an H-2A visa demonstrate that they cannot fill the jobs with domestic labor. Writing in 2017, and relying on Pew Research Center data among other sources Fordham Law Professor Jennifer Gordon has found that there has been a “stunning 65% decline in undocumented immigration in the United States.”

Gordon hypothesizes that the reduction in undocumented immigration has contributed to an increase in reliance on guest-workers coming into the country on H-2A visas. In addition to demonstrating an inability to hire locally, H-2A employers—the entity listed as the employer on the H-2A visa issued from the Department of Labor—are required by regulation to provide H-2A workers with several other benefits. H-2A employers must pay their workers an Adverse Effect Wage Rate (AEWR), which is designed to ensure H-2A workers don’t depress local farm workers’ wages. H-2A employers – which, as noted above, are increasingly farm labor contractors, who are independent agents, and not the farms or growers for whom the workers work, are not authorized to charge a recruitment fee for the position and must pay for workers’ international travel costs to the United States, as well as transportation to and from worksites. H-2A employers must also provide housing for H-2A workers. 

These regulations are widely violated, and enforcement by the Department of Labor does not adequately identify or redress all violations. Mike Rios, a former Southeast Regional Enforcement Coordinator in the Wage and Hour Division at the Department of Labor, told Fernanda Echavarri and Tina Vazquez in an interview with Futuro Media that “you can throw a rock and hit a violation in the agricultural industry.” He went on “I would say that wage theft is almost baked into the system.” Rios was discussing a report of extreme human rights violations against H-2A workers published by Prism in April 2023.

“In an indirect way, it could also be seen that the grower benefits, because if the labor contractor is recouping some of their money, by taking money from the workers in the ways that I’m highlighting, charging recruitment fees and not paying for inbound transportation like they should, that same labor contractor is able to charge a lower fee to that grower.”

When I spoke with Rios, a 20 plus-year-veteran of the DOL in April 2024, he elaborated on his statement. “Wage theft is the number one problem [in the H-2A program] measurable in dollars. If you look at any wage and hour metric for the past umpteen years, you will see that every year the Wage and Hour Division finds millions upon millions of dollars owed to workers in back wages.” Rios went on to explain how farm labor contractors systematically charge high recruitment fees and fail to reimburse workers for their international travel to the United States, despite explicit regulations mandating for their payment and prohibiting such fees. 

Such wage violations can have catastrophic consequences for H-2A workers. In a rare case in 2020, brought against a labor contractor based in Arkansas who employed workers who worked on sugarcane plantations in Louisiana, one H-2A worker spent more than $600 to enter the United States but ended his contract with the labor contractor $700 in debt. Furthermore, even after wage theft has been identified it can be extremely difficult to actually return the stolen wages to workers, in part due to the failure of employers to keep accurate, updated lists of names and addresses of former employees.

When I asked Rios about who benefits from this wage theft, he first identified labor contractors, explaining that labor contractors bear all the responsibility for H-2A workers: the farms for whom they work are entirely separate entities. He explained that labor contractors were therefore the ones whose profits depend on a model of wage theft through recruitment fees, sometimes kick-back practices or failure to reimburse workers for travel expenses. Rios then expanded, “in an indirect way, it could also be seen that the grower benefits, because if the labor contractor is recouping some of their money, by taking money from the workers in the ways that I’m highlighting, charging recruitment fees and not paying for inbound transportation like they should, that same labor contractor is able to charge a lower fee to that grower.”

In addition to the enforcement challenges, the power imbalance between H-2A workers and the corporate entities that profit from their labor is ensured through a combination of exclusion from statutory protection and reliance on complex corporate structures to limit corporate liability. Here again labor contractors play an important role. Central to the limited liability for the corporate growers are the farm labor contractors who are legally layered between H-2A workers and the entities who rely on their labor. 

The very first thing Schell highlighted in our conversation was the fact that use of farm labor contractors in the Southeast is growing rapidly. In fiscal year 2022 of the hundreds of thousands of H-2A workers who come into the country 43% were brought in under employment contracts with labor contractors. 

Familias Unidas por la Justicia, an AFL-CIO affiliated independent farmworker union based in Washington State, summarized the role of labor contractors in a post last year, asserting that they were “modern day predators” who operate with impunity and who  “profit off [the] precarity” that H-2A workers experience. Edgar Franks, the Political Director for Familias Unidas por la Justicia, expanded on this when I spoke to him, noting that through his years at the union it had become clear that the barrier to workers getting a fair workplace, especially H-2A workers, was not so much the employer but the labor contractor. 

Schell described labor contractors slightly differently, while also emphasizing their ability to disrupt migrant organizing for the sake of profit. Labor contractors, he said, were “upwardly mobile farm workers who figured out that if they could be a little boss, they could make more money.”  The enterprising farm worker turned labor contractor buys a bus and becomes the crew boss and takes over the legal responsibility for managing the H-2A workers. In Schell’s experience, labor contractors aren’t necessarily U.S. citizens, they might not even be particularly sophisticated businesspeople, and may even have a relatively low level of education but are now running a business that employs hundreds of people. 

Labor contractors, he said, were “upwardly mobile farm workers who figured out that if they could be a little boss, they could make more money.”

From the perspective of the growers, farm labor contractors create a legal layer between the growers and the people who work on their farms. For H-2A workers, this has significant consequences for the kinds of legal accountability they canseek. As a starting point, H-2A workers are not included in the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) which precludes them from suing under that statute for specific rights and protections enshrined there. 

H-2A workers are therefore largely left with only contract law to seek legal recourse for rights violations. In order for an entity to be liable for breach of employment contract the entity in question must legally constitute an employer or a joint-employer of the worker. The statute that created the H-2A program, the Immigration Reform and Control Act (IRCA), does not define the term “employer.” Therefore the question becomes, who can an H-2A worker sue for wage theft or other violations? Who is their employer?

The Eleventh Circuit in 2016 in Garcia-Celestino v. Ruiz Harvesting grappled with this question. At issue in Garcia-Celestino, like so many H-2A cases, was a matter of wage theft. A labor contractor, Ruiz Harvesting, had operationalized a kick-back program requiring H-2A workers to return a portion of their wages to Ruiz. The H-2A workers brought suit against both the labor contractor and the Citrus grower whose groves they had tended and who also employed Ruiz. 

Greg Schell emphasized the significance of the question in Garcia-Celestino. Recalling the labor contractors’ relative lack of power and sophistication compared to the growers, and further up the chain the buyers, he observed that labor contractors are chronically undercapitalized. This means, among other things, that labor contractors lack adequate financing to pay off damages awards in lawsuits.

The consequences of using labor contractors as shell corporations is illustrated in the case  Saucedo v. Northwest Management. Although this case arose from wage theft experienced by migratory farm workers who have citizenship in the United States it illustrates the corporate structure of farm labor contractors, the consequences of which impact both local and H-2A workers alike. Andrea Schmitt of Columbia Legal Services worked on the case and told me that Northwest Management, the farm labor contractor and formal employer of the farm workers, “had essentially no capital. It was just a shell. It had nothing, didn’t own anything.” Schmitt elaborated that in the wage theft lawsuit, where workers were threatened by a foreman with a pistol, the workers were looking at getting nothing from this shell company. However, the plaintiff farm workers were ultimately able to rely on a state law to hold the employer of the labor contractor—an insurance company based in Boston, Massachusetts who had invested in the Washington apple industry—liable. This state law stipulates that if a farm labor contractor is not properly licensed their employer can be held liable for violations. Schmitt noted that after Saucedo many more farm labor contractors in Washington were incentivized to become properly licensed 

In Garcia-Celestina the question was: who legally employed the H-2A workers? As illustrated by the Saucedo case, the underlying impact of the answer was, can H-2A workers actually recoup any of their lost wages, or does liability end with the labor contractor, whose business is often merely a shell.  To answer the legal question of who the employer was, the Eleventh Circuit engaged in a “fact-specific” analysis, meaning that the Court considered the facts of the case against a factorial test to determine if the relevant legal standard had been met. Thus, what legal standard is used is very important, and given the Immigration Reform and Control Act’s (IRCA) silence on who is an employer for the purposes of H-2A workers, there were multiple standards to choose from, including the broad definition of employer under Fair Labor Standards Act (FLSA), or a second narrower definition under the common law. 

The Supreme Court has previously held that when a statute does not define a term that has “accumulated settled meaning under the common law” a court must infer that Congress intended the settled common law definition to apply. Due to the lack of an explicit definition of “employer” under IRCA, the Eleventh Circuit applied the narrower common law definition of an employer finding that the Defendant Citrus Grower did not constitute an employer for the purposes of the H-2A suit. The Eleventh Circuit also noted however, that if the statute had included the same definition of employer as the FLSA the Citrus Grower would have constituted a joint employer. 

The result of this decision, a narrow employment definition, combined with the existence of undercapitalized labor contractors creates a relatively impenetrable legal shield between the H-2A workers and the corporate entities who are profiting from their labor. 

Schell summarized the situation, “there is always somebody else that you can find to take the job, so you have to have guard rails in place that are enforceable on the employer to do the right thing. Employers left to their own device have all kinds of incentives to cut corners, so you have to make the end employer liable, so the end employer has to go to [their buyer] and say, look I’m going to be liable so you’re going to have to pay more for the oranges for example. Right now, they don’t have to do that, they say, that’s my labor contractor’s problem. If he goes broke or goes to jail, what do I care?”

When Honesto Ibarra, the farm worker who died while employed as an H-2A worker at Sarbanand Farms was first hospitalized his co-workers went on strike. This strike lasted one day but was nevertheless sufficient to get around 60 H-2A workers fired. The day after the strike the workers were fired and evicted from their accommodations by Sarbanand Farms. After this eviction, with nowhere else to go, most workers were forced to return to Mexico. During this time some of the workers had managed to contact Columbia Legal Services, which was able to initiate a lawsuit, Rosas v. Sarbanand.

The class action suit was settled with Munger Bros., the parent company of Sarbanand Farms in January, 2020 for $3.75 million dollars, with around $2.93 million going to the migrant workers themselves. This settlement was successful in part due to the fact that the labor contractor, CSI, was not licensed in the state of Washington. And, as noted above in the discussion of the Saucedo case, under Washington law, if an employer uses an unlicensed farm labor contractor, the employer is jointly and severally liable for all the unlawful actions of the labor contractor. Therefore, most labor contractors are becoming licensed as farmers and growers are incentivized to only work with licensed labor contractors.

In addition to seeking representation from Legal Services, farm workers in Washington are beginning to organize. But there are only a handful of farm worker unions in the United States,  and that’s by design, according to Baldemar Velasquez, the founder of the Farm Labor Organizing Committee (FLOC), a farm worker union based in Toledo, Ohio with workers spread around the mid-Atlantic region emphasized, was by design. Franks from Familias Unidas por los Justicia agreed. When we spoke he told me “there’s a lot of organizing that’s happening in farm work, and farmers don’t like that. So they’re going to try to do whatever they can to minimize worker organizing opportunities. And one of the best ways is to bring in H-2A workers who are totally dependent on their employer for everything. This creates an imbalance of power, and so employers really like the H-2A program because they basically have a captive workforce.”  Despite this ostensible conflict of interest, Familias Unidas por los Justicia and FLOC both have H-2A workers affiliated with their union: some under collective bargaining agreements, others as members who can reach out to the Union should there be particularly intolerable violations. 

“employers really like the H-2A program because they basically have a captive workforce.” 

Unions also present another possible option for H-2A workers to overcome the legal barrier of farm labor contractors. FLOC and Velasquez rose to prominence in the 1980s when FLOC organized a successful boycott of Campbell Soup, which resulted in the first multi-party collective bargaining agreement in the agricultural industry. FLOC successfully replicated this model again in the early 2000s, winning another tripartite contract with Mt. Olive Pickle after a five-year boycott. This means that the union was not only bargaining with their direct employer, but with their employer’s employer as well. This bigger-picture advocacy allowed the union to more successfully bargain for their workers, who simply couldn’t get what they needed from their direct employer—who was in many ways also being exploited by the larger corporate entities in the agribusiness supply chain.

As more H-2A workers come into the United States it is important to understand, as Rios illustrated, the indirect benefits that labor contractors provide to growers and buyers further up the supply chain. Perhaps as FLOC has illustrated, unions can help ensure that these larger entities who stand to gain from the H-2A program are held accountable for its abuses. 

The future of the H-2A program is uncertain. Ongoing litigation to prevent the prior administration’s attempts at reform, and deep uncertainty with regard to the future of immigration policy in the United States, make it challenging to anticipate the short-term future of the program. Yet, despite these nearer term uncertainties, a deeper structural critique will remain applicable: without mechanisms to hold the biggest and most powerful corporate actors to account for violations of basic fair employment standards, economic pressure from across the supply chain will force smaller actors towards violations to make profit, leaving the least powerful actors exposed to great risk of abuse. As one migrant advocacy organization once put it, the program is “ripe for reform” – but any reform in the long term must take this structural reality into account