February 2012

CENTRO DE LOS DERECHOS DEL MIGRANTE

FACT SHEET ON THE 2012 DEPARTMENT OF LABOR FINAL H-2B RULE

On February 21, 2012, the US Department of Labor published the new Final Rule: Temporary Non-agricultural Employment of H-2B Aliens in the United States. The new rule is a win-win-win for migrant workers, US workers, and law-abiding employers. It will ensure that employers do more to recruit workers at home before they tap a vulnerable labor pool abroad. The rule will also protect H-2B migrant workers from exploitation in recruitment by banning foreign labor recruiters from charging certain fees and requiring employers to pay visa and travel costs. In support of these changes, the final rule cites to Picked Apart: The Hidden Struggles of Migrant Worker Women in the Maryland Crab Industry, an investigative policy report written by CDM and American University Washington College of Law.

A fact sheet from the National Employment Law Project about the H-2B program and common program abuses that harm workers is attached and available here.

Key provisions in the new rule include:

• Job Contract. Employers will be required to provide a copy of the job order to each H-2B worker in a language the worker understands no later than when the worker applies for the visa. Recruiters often make false promises about pay and working conditions in the United States. The job contract will help prevent fraud in recruitment and will hold employers accountable for the wages and conditions that they promise. 20 CFR § 655.20(l), 29 CFR § 503.16(l)
• Contractual Prohibition on International Labor Recruitment Fees. In their contracts with recruiters, employers will be required to specifically prohibit recruiters from charging international labor recruitment fees.  This will help prevent workers from going into debt just to get a job. 20 CFR § 655.20(p), 29 CFR § 503.16(p)
• Three-Fourths Guarantee. To prevent over-recruitment and the benching of guestworkers, employers of H-2B workers will be required to pay them at least three-quarters of the hours promised in the work contracts for each 12-week period (and for workers with contracts that are shorter than 120 days, each 6-week period).  In the past, H-2B workers have been brought to the United States and then given little or no work, while paying high costs for housing and food. 20 CFR § 655.20(f), 29 CFR § 503.16(f)
• Reimbursements for Visa and Travel Fees. Employers will be required to pay or reimburse workers for the full amount of inbound travel and subsistence after a worker completes 50 percent of the employment contract. Employers will also be required to provide outbound transportation and subsistence for migrants who work until the end of the job order or who are dismissed for any reason before the end of the job order. 20 CFR § 655.20(l), 29 CFR § 503.16(l)
• Improved Transparency in International Labor Recruitment. Employers will be required to provide the Department of Labor with a copy of all agreements with any agent or recruiter with whom they engage or plan to engage in recruiting H-2B workers. 20 CFR § 655.9
• Job Registry. A national electronic job registry for all H-2B job orders will be created so that workers across the United States know about job opportunities. 20 CFR § 655.34
• Recruitment of US Workers. Employers will be required to keep records documenting their recruitment of US workers and to accept referrals of unemployed workers from state workforce agencies. 20 CFR §§ 655.20-.48 and 29 CFR § 503.16(t)
• Offer to Rehire Provision. Employers will be required to offer to rehire certain former employees when they are available and recruit and hire US workers for a longer period of time. 20 CFR § 655.20(w)
• No Retaliation. Employers will be prohibited from retaliating against US and H-2B workers for engaging in concerted activity. 20 CFR § 655.20(n)

TUESDAY, February 21, 2012

CONTACT:

RACHEL MICAH-JONES

RACHEL AT CDMIGRANTE DOT ORG

410.783.0236

New DOL Rules Promote Fairness In the Recruitment and Employment of Foreign Temporary Workers

Centro de los Derechos del Migrante, Inc., Migrant Worker Leaders Applaud US Department of Labor’s Stance against Recruitment Abuse for H-2B workers

BALTIMORE, MARYLAND, February 20, 2012—Today, the US Department of Labor (DOL) published new rules for the H-2B non-agricultural guestworker visa program to protect migrants abroad and job-seekers in the United States.

Centro de los Derechos del Migrante, Inc. (CDM) and migrant worker leaders from the Comité de Defensa del Migrante (Migrant Workers’ Defense Committee) applaud the DOL for taking a stand against recruitment and employment abuses. These abuses were detailed in Picked Apart: The Hidden Struggles Of Migrant Worker Women In The Maryland Crab Industry, a report co-authored by CDM and American University Washington College of Law.

Protections in the new rule for H-2B migrant workers include:

• Job Contract. Employers must provide a copy of the job order to each H-2B worker in a language the worker understands no later than when the worker applies for the visa. Workers often rely on false promises about the pay and work conditions in deciding to go to the U.S. This will help prevent fraud and misinformation.
• Contractual Prohibition on International Labor Recruitment Fees. In their contracts with recruiters, employers must specifically prohibit recruiters from charging international labor recruitment fees.  This will help prevent workers from going into debt, just to get a job.
• Three-Fourths Guarantee. To prevent over-recruitment and the benching of workers, employers of H-2B workers will be required to pay them at least three-quarters of the hours promised in the work contracts for each 12-week period (and for workers with contracts that are shorter than 120 days, each 6-week period).  In the past, workers have been brought to the U.S. and then given little or no work, while paying high costs for housing and food.
• Prohibition on Retaliation. H-2B employers are prohibited from retaliating against workers for filing or instituting complaints, providing testimony, consulting with workers’ center or lawyers, and exercising or asserting, on behalf of himself/herself or others, any right or protection.
• Reimbursements for Visa and Travel Fees. Employers must pay or reimburse workers for the full amount of inbound travel and subsistence after a worker completes 50 percent of the employment contract. Employers must also provide outbound transportation and subsistence for migrants who work until the end of the job order or who are dismissed for any reason before the end of the job order.
• Improved Transparency in International Labor Recruitment. Employers must provide DOL with a copy of all agreements with any agent or recruiter with whom they engage or plan to engage in recruiting H-2B workers.

“With enforcement, the new protections in the H-2B rule will reduce many of the serious recruitment and workplace abuses in the H-2B program,” said Rachel Micah-Jones, the CDM’s Founder and Executive Director. “This rule is an important victory for workers.”

Elisa Tovar Martinez, a former H-2B worker in Maryland’s crab industry featured in the Picked Apart report and migrant worker leader of the Comité de Defensa del Migrante (Migrant Workers’ Defense Committee), said, “I am very pleased that we are realizing the fruits of the work that we have done as the Comité de Defensa del Migrante with CDM and other organizations to benefit migrant workers. Just conditions are what we seek.”

The new rule will be effective on April 23, 2012. For more information about the H-2B program, see the National Employment Law Project’s “Fact Sheet: H-2B Guestworker Program and New Labor Department Rules to Protect U.S. and Foreign Workers.”

Centro de los Derechos del Migrante, Inc. is a transnational 501(c)(3) non-profit migrant rights organization with offices in Mexico City, Mexico, Juxtlahuaca, Oaxaca and Baltimore, Maryland. The Comité de Defensa del Migrante (Migrant Workers’ Defense Committee) is a group of community-based leaders who organize and empower migrant workers to defend themselves and educate their co-workers.

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CDM is the first transnational migrant workers’ rights organization based in Mexico. CDM is a 501(c)(3) non-profit organization that is driven by its mission to improve the conditions of low-wage workers in the US. CDM envisions a world where migrant workers’ rights are respected and laws and policies reflect their voices.

Download CDM Informational Brochure in English (pdf)

Bit nhakin che gobierhn. Bit nhakendo bene chhelhche bene shjake wenllin do lhall grhingw ka. Yogolho da chhaklhenhento bene chjelenhe llin lhall grhingw, bit shchixhjentonhe mechh.

¡Bllon da chheyalo nhakin chio nha gwzua xhlatjo!

Download CDM’s Informational Brochure in Zapoteco (pdf)

CDM Brochure in Mixteco

While in Mexico, UMD law students will support CDM’s international and domestic litigation and policy advocacy, and will advance CDM’s work on many important ongoing initiatives. CDM and the University of Maryland International and Comparative Law Clinic will continue work on the North American Agreement on Labor Cooperation (NAALC) petition. CDM filed the petition in September 2011 against the US government, and will be developing a comprehensive advocacy strategy with UMD students in order to continue efforts to hold the US government accountable for the protection of H-2B guestworkers’ rights.

The University of Maryland law students will also provide direct support to CDM’s Justice in Recruitment project, promoting further understanding in policy arenas about the systematic abuses H-2A and H-2B workers face during recruitment in Mexico. Finally, CDM and the International and Comparative Law Clinic will continue to defend H-2B workers’ rights by pursuing strategic litigation under the Fair Labor Standards Act and guestworker regulations.

CDM recently sat down with the law students to hear about their hopes for the collaboration. Here’s what they had to say:

“CDM’s policy work is amazing, and it’s work that is important to me- especially the work that monitors international labor recruitment across employment sectors and visa categories. I am confident that the information that we will be helping CDM and other organizations put together can help to push structural changes in immigration and employment law to prevent predatory recruitment practices.” – Kate Brown

“I am very excited to be working with CDM this spring semester and hope to gain practical law experience through this clinic and with CDM. I can’t wait to be part of such an amazing organization. I am excited to visit workers in their home communities to discuss with them their experiences in the United States.” – Jessica Killeen

“CDM does such meaningful work. I am very eager to participate in the projects we’ll be working on with the organization. The opportunity to deal with the issues first-hand is invaluable; I’ve realized that there is so much that cannot be taught in the setting of a law school classroom. This is a unique opportunity to learn about the issues faced by international workers from a transnational perspective. I think that there is a lot of insight to be gained by working on both sides of the border.” – Catherine Gonzalez