Like most of his co-workers, Castellanos came to the United States on an H-2B visa. The H-2B and its close cousin, the H-2A visa, are part of the H-2 government program, which allows employers to temporarily import foreign labor for jobs that do not interest U.S. citizens. While the H-2A is limited to agricultural workers, the H-2B is open to any work where the employer’s need is one-time, seasonal, or intermittent. This includes jobs such as landscaping, forestry, food processing, construction, and others. A key feature of the H-2 visas is that they tie workers to their employment. This means that workers cannot change jobs while in the United States and losing their jobs would lead to their deportation.

The program, like other circular migration programs, has been hailed in international circles as a “triple win” solution. Triple win because it benefits the three relevant parties in the equation: the United States, by granting its corporations access to cheap labor; the workers’ origin countries by creating a steady flow of remittances while mitigating a brain drain; and the workers themselves, who will benefit from increased income and gain transferable skills from working in the United States. This is not to mention the perception that guest workers will not be competing for work with U.S. citizens, given that their jobs must, by statute, be undesirable to domestic workers, and that they cannot seek other, more lucrative employment while in the country. With all these perceived advantages, it is no wonder that the U.S. has been expanding the program since its inception. 

A Honduran H-2A worker harvests apples at a Nursery in Aspers, PA, on August 15, 2019. (Source: The U.S. Department of Agriculture, Photo by Lance Cheung).

In fact, since Castellanos applied for his visa, the H-2 program has almost tripled, going from 119,384 visas issued in 2005, to 352,951 in 2021. But, far from manifesting the program’s “triple-win” potential, this expansion has corresponded with a steep rise in reported guest-worker exploitation. Since Daniel Castellanos filed his complaint against Patrick Quinn III and his Decatur hotels, numerous similar complaints have surfaced. All across the country, workers have been the victims of wage theft, physical assault, imprisonment, starvation, and rape, and some have even been held at gunpoint . In one recent case, at least two farmers died as a result of the working conditions on an onion farm in Georgia.  Indeed, in a report about guest-workers, Polaris revealed that most temporary workers in the United States have experienced some sort of abuse, with 99% reporting coercion and 94% reporting fraud.

The number of H-2 workers in the U.S. has increased from 119,384 in 2005 to 352,951 in 2021, with the growth mainly coming from H-2A workers (Source: U.S. Department of State – Bureau of Consular Affairs)

These statistics indicate that the abuse of temporary workers is not solely a bad apple issue. It is a systemic problem that flows from the very core of the post-Cold War neoliberal order. Specifically, it is the direct consequence of the interaction between the global product and human supply chains, both of which place the corporation at the top, and the worker at the very bottom. 

Following the end of the Cold War and the fall of the Soviet Union, business and government elites and their allies in academic institutions came to the consensus that we had reached “the end of history”. In Francis Fukuyama’s words, neoliberalism, centered around the ideas of a free market and deregulation, was at the “endpoint of humanity’s ideological evolution”, just like Western liberal democracy was the “final form of human government”. Therefore, governments pushed, or, in the case of the Global South, were pushed into cutting tariffs to incentivize trade, rolling back social safety nets, and privatizing public goods. These steps, neoliberals believed, would bring Western consumers cheaper goods and improve their well-being, all the while creating jobs for workers in the Global South and ending poverty altogether.

Abuse of temporary workers is not solely a bad apple issue. It is a systemic problem that flows from the very core of the post-Cold War neoliberal order.

Decades into the end of history, however, it is evident that neoliberalism has not delivered on its promise. Far from ending poverty, it has brought global inequality to unprecedented levels, and injected into the global labor market an army of workers so poor and disregarded that they lack the power to resist exploitation. 

One of the main culprits responsible for this phenomenon is the “fissured workplace” – a concept that crescendo-ed into ubiquity in the late 1980s and early 1990s. The concept can be summarized as follows. With large corporations fervently competing on the free market, it has become vital for them to continuously deliver novel products at exceedingly lower prices. The latter point is exacerbated by the falling living standards of Western consumers – a phenomenon that is, itself, a product of capitalism. In order to reduce their prices and maintain their profit margins, corporations started “fissuring their workplaces”: outsourcing most aspects of their businesses to more specialized firms. This fissuring also allowed the corporations to shield themselves from legal liability by adding multiple degrees of separation between them and the end consumer. As such, most functions in corporations, from manufacturing to landscaping to human resources, started going to smaller contractors and suppliers, who, themselves, often also rely on suppliers of their own. The result is a global production value chain, with multiple firms interacting to deliver a single product or service. 

Decades into the end of history, however, it is evident that neoliberalism has not delivered on its promise.

At the same time, there is an increasing concentration of market power among large corporations, such as Apple, Wal-Mart, and Nestle. This large purchasing power allows these corporations to pressure their suppliers into agreeing to provide unreasonable quantities of products or services at exceedingly low prices, and in short periods of time. But, as Emma Scott from Harvard Law School’s Food Law and Policy Clinic explains, the suppliers themselves also need to maintain a profit. In the context of the food industry, for example, “you have a lot of employers in H-2A programs competing in highly consolidated markets. Prices, in a way, are dictated, and labor is a big expense. This makes it hard to compete in the food market and go above and beyond for your workers. There are many employers that do succeed in balancing both, but there is considerable bottom-line pressure not to.” 

The same logic applies to H-2B programs and global supply chains in general. In order to protect their increasingly squeezed profit margins, employers often end up cutting their labor costs by hiring a cheaper workforce and coercing employees to work for long and consecutive shifts to meet the requisite demands. With all this pressure coming from the top, and given the tough demands of the work, suppliers will seek out workforces whose desperation and vulnerability leave them with little choice but to accept deplorable working conditions. 

With all this pressure coming from the top, and given the tough demands of the work, suppliers will seek out workforces whose desperation and vulnerability leave them with little choice but to accept deplorable working conditions. 

Indeed, chief executives have publicly admitted to the consequences of this incentive structure. Testifying before a U.S. Senate Committee in 2015, for instance, Frank Randol, owner of a Louisiana crawfish processing company, explained how this phenomenon impacted his hiring practices:  

In the 1970s, when I started my business, I was lucky enough to have the refugees from Vietnam come in, so we brought in roughly 40 to help us get through that time. Over the course of the years, we came to the 1990s, when that started to wane just a little bit. We discovered the H-2B program and started bringing in the guest workers from Mexico. . . . [This year], we tried something different: seven prison trustees. After one day, one prison trustee said: “I would rather go back to jail than peel crawfish”. The warden picked him up, and took him back, and we didn’t see him again. The remaining trustees continued to shrink until after a two-week effort, they were all gone.

Consistent with Randol’s testimony, United States corporations, in response to the increasing pressures from the top, have heavily relied on available marginalized workforces. In the past, this labor force came from undocumented workers. But with the sharp decline in the number of undocumented migrants in the past decade, firms have had to increasingly turn to another source of vulnerable workers. This is where the human supply chain and its resulting abuse of H-2 workers, come in. 

The U.S.’s shift to H-2 guest workers has given a prominent role to intermediaries in the hiring process. While domestic and undocumented workers are usually present in U.S. territory when they are hired, the temporary worker visa program requires employers to hire workers while they are still in their home countries. This makes recruiters and intermediaries a practical necessity for employers. Recent estimates indicate that at least 80% of temporary workers in the United States were hired via an intermediary. This reliance of employers on recruiters, and recruiters on agents, is what Fordham Law School Professor Jennifer Gordon has termed the Human Supply Chain. 

By the time the workers arrive in the United States, they are already in ruinous debt. 

Employers’ growing reliance on recruiters and intermediaries is troubling.  Due to the large wage differential between the Global North and South and false advertisement of the working conditions and wages in the United States, the demand for temporary work in the U.S. always exceeds the supply. This has incentivized recruiters in the origin countries to charge the prospective workers, not only the cost of visa and travel but also extortionate “rent” fees to access their coveted services. Desperate for the jobs, workers often take out loans to cover the fees. In fact, according to a 2018 study by Centro de Los Derechos del Migrante, 58% of H-2 workers reported paying a recruitment fee to come to the U.S., and 47% of them took out loans to cover pre-employment expenses. Loans sometimes come from family members and friends at low or no interest. But they also often come from local banks, private lenders, or recruiters themselves, and interest rates on these loans can be astronomical, ranging from 5% to 79%. Some lenders even require workers to leave titles to vehicles or deeds to property as collateral. As such, by the time the workers arrive in the United States, they are already in ruinous debt.

Illustrative example of the intersection between human and product supply chains. The higher up a player is in the chain, the more powerful it is and the more profitable its enterprise. (Source: Jennifer Gordon, Regulating the Human Supply Chain, 102 Iowa L. Rev. 445 (2017)).

This is what happened to Daniel Castellanos. Once he committed to getting the job, he reached out to the relevant recruiting company, which informed him that he had to pay a $115 fee for the visa application, in addition to approximately $5,000 in recruiting fees “in order to come to the United States legally.” The amount was exorbitant, and Castellanos did not have it at hand, but it seemed like a worthwhile investment considering his promised income from the job. So he took out loans and paid the recruiters. Only later did Castellanos realize that he was paying “coyotes with ties.” In fact, from his later work as an organizer, Castellanos learned that some female workers have been made to pay with more than just money for the opportunity to work in the United States.  

“[We were] the property of this company for the time that [we] had in [our] visas, they had [our] life into their hands.”

Once Castellanos made it to the United States, he, like his co-workers and other H-2 workers, was in debt. His first order of business became to pay off his loans before he could begin to think of sending money home. This pressure put him and his co-workers in a particularly precarious position. They had no option but to accept the unfathomable working conditions they were in. They could not change jobs, and they could not complain, otherwise they would be deported and sent home in worse financial conditions than when they came in. “[We were] the property of this company for the time that [we] had in [our] visas,” Castellanos says. “They had [our] life into their hands.”

Despite the risk, Daniel Castellanos did not have it in him to accept the conditions he was in. He was also in a better position than his co-workers because he spoke English. This allowed him to meet Saket Soni, a lawyer, and start organizing his co-workers to demand better conditions. When Decatur grew tired of him and fired him for poor performance, Castellanos appealed to the Department of Labor, which provided him with protected status and required the company to either pay him $10,000 or reinstate him. Castellanos, knowing full well that Decatur would not welcome him nicely, chose the second option. “$10,000 is $10,000, but it is not the price of my dignity. [So] I decided to stay.”  

Today, Daniel Castellanos continues to fight for guest workers’ rights in the United States. His complaint against Decatur Hotels, he says, was the first time that guest workers had filed suit against their employers, triggering a movement of guest workers organizing and fighting for their rights. Once he was freed from the confines of his employment, Castellanos co-founded the National Guest-Worker Alliance (NGA), which he later joined under Resilience Force, a larger umbrella organization that he also co-founded. 

One of the NGA’s most famous triumphs was exposing rampant abuse of guest workers at CJ’s Seafood, a fish processing company that supplied the majority of its shrimp to Walmart. The workers, mostly hailing from Tamaulipas, Mexico, were made to peel crawfish continuously for 17 to 24 hours and were paid by piece with no overtime pay. They were often locked inside the processing facility to ensure that they were not taking breaks. The workers lived in company-owned trailers surrounded by cameras, had strict curfews, and were banned from having visitors. Once they started organizing for their rights, their employer not only threatened them with deportation. He said he would send armed men to assault their families in Mexico. 

Despite the credible threats to their children’s lives, the workers, with the help of the NGA, continued to organize and strike, triggering federal investigations into the company and initiating three victories.  First, like Castellanos, the workers won immigration protections—so that they could leave the employer and find work elsewhere. They also received hundreds of thousands of dollars in back wages and fines. Finally, pressured by the growing media coverage of the abuses, Wal-Mart cut its ties with the supplier, pushing it into bankruptcy. 

The CJ’s Seafood campaign sent shockwaves throughout the seafood industry, but to stop the fight there would mean missing the point. CJ’s Seafood, like other similar offenders, did not operate in a vacuum. Its abuses were the direct result of incentive structures created by the global product and human supply chains and the pressures felt from the top. Today, patterns of abuse continue to exist in plain sight, not only in the seafood and hospitality industries, but also in agriculture, energy, and other industries alike, and the government seldom does anything to stop it. Any real solution would thus have to be system-wide and include changes to the H-2 worker program itself. But with corporations’ persistent lobbying for expanded, cheap H-2 programs, change has been slow. 

On March 19, 2021, the House of Representatives passed a bipartisan compromise bill, the Farm Workforce Modernization Act (FWMA), that aims to provide undocumented farmworkers with a path to citizenship and overhaul the H-2A program. After stalling in the Senate, momentum is once again growing in its favor. If passed, the law would allow guest workers to file lawsuits in federal court to enforce their employment terms and would increase oversight over the recruitment process by requiring foreign recruiters to register on a public directory for employers and workers to access.

More importantly, the law would allow H-2A workers to petition for lawful permanent residency after 10 years of service, and it would introduce the “Portable H-2A Visa Pilot”, a 6-year pilot program granting up to 10,000 workers the freedom to move between registered agricultural employers. The pilot, if successful, could be extended or expanded at the end of the 6-year period. These improvements to the H-2A visa, in addition to the path to citizenship that it would provide undocumented farmworkers, have prompted leading Democrats like President Joe Biden, prominent labor groups like the United Farm Workers of American (UFW), and leading legal advocacy organizations such as Farmworker Justice to support the bill. 

(Over 70 H-2B workers protest in front of the White House in 2008 and demand that their employer, Signal International, be held accountable for fraud and human trafficking. The workers had paid between $10,000 and $20,000 in recruiting fees after being falsely promised good jobs and permanent residency, only to end up working in oil rigs in sub-human conditions. In 2015, 7 years after the protest, the workers won a $20 Million settlement, bankrupting Signal. Photo Credit: Jobs with Justice, 2008.)

But these improvements would come at a price. In return for the new protections and a fraught and lengthy path to permanent status, the FWMA would provide two big wins to its corporate sponsors. First, it would cap increases to the H-2A minimum wage for the next 10 years, making guest workers all the more attractive and cost-effective to employers. Second, and more troublingly, the bill would greatly expand and simplify the H-2A program, for example, creating a “one-stop” online portal to streamline the visa application process. With the Department of Labor failing to exercise adequate oversight over the program in its current size, FWMA opponents worry about its ability to enforce existing protections, let alone new ones, if the program were to expand even further. This is not to mention that the bill, by definition, does not cover the H-2B program.

A more viable solution to both H-2 programs, Economy Policy Institute (EPI) director Daniel Costa writes, would have to include legislative protections from employer retaliation and deportation, a minimum wage that matches, at least, the local average or median wage for the specific job, and true transparency in the recruitment process. Crucially, the changes must also provide interested H-2 workers with a clear path to citizenship, and untie their visas from a single employer, thus empowering them with the freedom to change jobs without losing their status. Only then could we begin to talk about a fair system.

Of course, statutory changes would be futile unless adequate resources are allocated towards their enforcement; and the Department of Labor (DoL) as it stands is far from having such resources. In a 2016 statement to Buzzfeed News, the Department pointed to its “finite resources” and its need to “be strategic” in its deployment to explain its limited success in stopping abuses. Indeed, according to a comparative analysis of the 2018 federal budget, the United States’ spending on immigration enforcement was an astounding 11 times greater than spending on labor standard enforcement. This data, Costa remarks, reveals that in the Land of the Free, “detaining, deporting, and prosecuting migrants, and keeping them from entering the country, is the top law enforcement priority […] —but protecting workers in the U.S. labor market and ensuring that their workplaces are safe and that they get paid for every cent they earn is barely an afterthought.” For any legislative reform to begin to be effective, this funding allocation would need to change, and the DoL’s mandate will need to be strengthened. 

 “Detaining, deporting, and prosecuting migrants, and keeping them from entering the country, is the top law enforcement priority […] —but protecting workers in the U.S. labor market and ensuring that their workplaces are safe and that they get paid for every cent they earn is barely an afterthought.” 

Finally, the essential step following enforcement is liability. Today, save for egregious cases, employers sanctioned for labor violations against H-2 workers have been required to pay nominal fines. This is not enough. In her landmark paper Regulating the Human Supply Chain, Professor Jennifer Gordon proposes a full-chain liability system that would include all the players in the value chains, starting with the recruiting agents operating in the workers’ origin countries, all the way to the large corporations at the top. Each player, she explains, would be “strictly liable” for all violations below it in the chain. This means that it would not matter if the corporations intended or knew about their suppliers’ or recruiters’ violations. If there is a violation, they will be required to pay a proportional fine, and, in the case of employers, will be permanently barred from participating in the H-2 program. Such a system would push firms up and down the chain to put structures in place to uncover and stop the abuse of workers, both by recruiting agencies on their way to the United States and by their employers once they arrive.

While controversial in the U.S., supply chain due diligence legislation is a growing trend in Europe, with laws in France, Germany, the Netherlands, and others, obliging large corporations to investigate, identify and mitigate risks of human rights abuses in their supply chains, at the risk of large civil penalties, and in some cases, criminal liability. These laws have the potential to shift the incentive structure, from encouraging worker abuse, to protecting against it. Given corporate power’s continued hold on Government, however, it is unlikely that such a proposal would see the light of day in the United States.

__________

On May 14th, 2008, a dozen H-2B workers at marine services company, Signal International, launched a hunger strike in protest of their sub-human working conditions. Two years prior, the workers had each taken steep loans and paid between $10,000 and $20,000 in recruiting fees to move from India to Mississippi, under the false promise of good jobs and permanent residency. Instead, they got temporary H-2B visas to clean oil rigs at below-market wages, were each forced to pay $1,050 in rent for tight trailers that cramped up to 24 workers each, and were threatened with deportation when they tried to organize. 

In March 2012, the Department of Labor opened an investigation of L.T. West Inc., a crawfish processing company in Louisiana. The probe came ten months after the police arrested two of its H-2B employees, both women in their twenties, for leaving their homes and going on dates without their boss’s permission. The women, as well as their co-workers at the plant, had come to the United States from Mexico in search of a higher wage to support their families, only to have their passports confiscated, live in pest-infested trailers, and work up to 15 hours per day, sometimes for less than $4 the hour. Their supervisor, Craig West, would also sexually harass the female workers and call them his property. Some nights, he would invite his friends to their trailers. 

On November 22nd, 2021, the Department of Justice announced the indictment of two dozen individuals who had participated in a “human smuggling and labor trafficking operation” in Georgia and subjected over 100 H-2A workers to abhorrent conditions. The workers, hailing from Mexico, Guatemala, and Honduras, had been living in “cramped, unsanitary quarters and fenced work camps with little or no food, limited plumbing and without access to safe water,” and were forced, sometimes at gunpoint, to “dig onions with their bare hands” for as little as 20 cents the bucket. Some were continuously raped. Others were sold. Two died on the job.

The workers in the above examples came from different continents, and worked for different employers in different industries, states and decades, and yet, their experiences were highly similar. Far from being unique, their stories indicate a pattern of guestworker exploitation and abuse in an America that remains captured by corporate power and greed. Indeed, the one unique aspect of the stories above is that they received press coverage. And yet, despite public attention, the H-2 program remains unchanged. This, however, has not stopped workers like Daniel Castellanos, from fighting the fight. 

__________

Looking back at his time in the United States, Daniel Castellanos realizes the impact he has had on the guest-worker movement, not just as a worker, but as an organizer as well. “Every time I get a new group of workers,” he says, “I [see] myself in them. There is a lot they didn’t know so they were afraid. Opening their eyes and making them see that they have rights is very satisfactory for me as a human being.” He continues. “I said this to my wife. I came for literally 10 months to the United States with this visa, and I [have been here for] more than 10 years. I think God sent me to do a job. And I am continuing to do the job.”

From The [F]law:

• Shao Chang, Gig Economy and the Future of Work
• Julio Colby, Brave New Work: The Resurgence of Organized Labor in the U.S.
• E. Tendayi Achiume, Dehumanized for Profit

From The Systemic Justice Journal:

• Austin Nielsen-Reagan, The Profitability of Inhumanity: How Corporate Power Gives Rise to Forced Labor in Privatized Immigration Detention
• Chloe Warnberg, Private Contracts in “Public” Prisons: How Corporate Power Allows for The Exploitation of Incarcerated People and Their Loved Ones
• Allison Beeman, Child Labor in the Global Cocoa Supply Chain: What Nestlé Tells Us About Corporate Harm