Guest Worker Programs and Guest Worker Litigation
Guest worker programs offer numerous benefits to employers in the United States. However, federal guest worker programs also harbor significant potential for exploitation and abuse by unscrupulous employers, leading to the mistreatment of foreign laborers.
Guest worker programs present distinct risks unique to foreign workers, and the litigation surrounding these programs contains complex issues at the intersection of employment, immigration, and international law. Despite its complexity, guest worker litigation is a necessary component in protecting the rights of foreign laborers participating in guest worker programs. Litigation can protect guest workers’ rights, expose hidden wrongdoing, and bring about lasting positive change.
What Are Guest Worker Programs?
Guest worker programs allow U.S.-based employers to hire foreign laborers to come work in the United States. These foreign laborers are often referred to as “guest workers” because they are issued work visas temporarily.
These temporary visas provide guest workers with non-immigrant statuses that are tied to the guest workers’ employer, meaning guest workers are generally unable to leave their employment with their specific employer because they may lose their authorized right to live and work in the United States and be deemed unauthorized.
There are two primary guest worker programs available in the United States: the H-2A Program and the H-2B Program.
- H-2A Program: Allows U.S. employers to bring foreign workers to the United States to fill temporary or seasonal agricultural jobs.[1]
- H-2B Program: Allows U.S. employers to bring foreign workers to the United States to fill temporary non-agricultural jobs.[2]
Employers in industries such as landscaping, forestry, seafood processing, and hospitality and tourism commonly utilize guest workers under the H-2B Program to supply their workforce.
To utilize either guest worker program, an employer must establish that: (1) there are not enough U.S. workers who are available and qualified to do the temporary work; (2) the guest worker will not adversely affect the wages and working conditions of similarly employed U.S. workers; and (3) the guest worker labor is strictly temporary.
Employers must also: (1) apply for and receive a temporary labor certification with the U.S. Department of Labor; and (2) submit Form I-129 with U.S. Citizenship and Immigration Services (USCIS). Once USCIS approves the Form I-129, prospective guest workers who are outside the country may apply for an H-2A or H-2B visa through the U.S. Department of State at a U.S. Embassy or Consulate abroad, and/or seek admission to the United States through U.S. Customs and Border Protection.
A guest worker may remain in the United States for the period authorized in the temporary labor certification. A guest worker may extend time in a qualifying job in increments of up to one year each, with a maximum stay period of three years.
One important difference between H-2A and H-2B is that the H-2B program has a statutory numerical limit (a “cap”) on the total number of H-2B guest worker visas issued. While H-2A has no cap, Congress set the H-2B cap at 66,000 for the 2024 fiscal year.
What Benefits Do Guest Worker Programs Provide?
Guest worker programs provide many benefits and advantages, both within the United States and internationally. They contribute to U.S. economic growth by alleviating labor shortages, ensuring industries have the labor support required to maintain productivity, and enhancing labor market efficiency.
Guest worker programs can also facilitate international partnerships by reducing unemployment pressures in countries with high unemployment rates and strengthening diplomatic relations.
What Challenges Do Guest Worker Programs Create?
Despite their benefits, guest worker programs come with serious drawbacks. Guest workers face unique challenges that implicate both immigration and employment law. Because their temporary status is restricted and tied to a specific employer, guest workers are often extremely vulnerable to workplace abuse, and exploitation rates are high.
Employers may pay guest workers lower wages than domestic employees, fail to comply with wage-and-hour laws, and subject guest workers to unsafe working conditions. Guest workers may also face discrimination in recruitment and retaliation if they complain or seek information about their rights.
Due to their non-citizen status, guest workers may have limited labor rights and greater difficulty accessing legal remedies and redress. Many also experience social and cultural isolation from being separated from family and home communities.
In extreme cases, guest worker programs can create labor trafficking violations. Labor trafficking is a form of human trafficking and occurs when an employer uses lies, violence, physical or psychological restraints, and/or fraud or coercion to force an employee to work.
Guest workers are particularly vulnerable to labor trafficking because employers may exploit power imbalances. Employers may threaten arrest or deportation if workers do not comply, leaving workers with few options beyond submitting to forced labor and becoming part of a captive workforce.
Guest Worker Litigation in the United States
Guest worker programs and the challenges guest workers face present distinct litigation issues because cases can involve complex areas of law, including employment, immigration, and international law. Guest worker litigation matters because it can provide individual remedies and also drive systemic change by exposing employer abuses, enforcing existing laws, setting precedent, and supporting advocacy and policy reform.
One of the largest labor trafficking litigations in U.S. history involved Signal International, a Gulf Coast marine services company. Multiple lawsuits alleged that hundreds of welders and pipefitters were lured from India to repair oil rigs after Hurricane Katrina. Because the work was non-agricultural, they entered the United States under the H-2B program after being promised jobs, green cards, and employer-provided housing.
According to the allegations, those promises were false. Workers were housed in crowded shipping containers; isolated in a compound surrounded by barbed wire and armed guards; underfed; forced to work around the clock; and charged excessive monthly fees that deprived them of livable income.
After years of litigation and numerous labor trafficking lawsuits—including a case where a federal jury awarded $14 million in damages to five Indian guest workers—a $20 million settlement agreement was reached to resolve the remaining lawsuits against Signal International.[3] Signal International also agreed to issue an apology to the affected guest workers.
The resolution reflected an important shift: labor traffickers are rarely held accountable, and survivors rarely receive civil damages or criminal restitution for the harms they endured.[4] The settlement not only significantly penalized Signal International, but also provided substantial justice to hundreds of mistreated and exploited guest workers.
Solutions for Guest Worker Programs
Although guest worker programs provide meaningful benefits to the United States and the domestic workforce, the programs are flawed and the challenges need to be addressed. A multi-faceted approach is required, including policy reform; stricter enforcement of labor and immigration laws; education and outreach to employers and employees; and legislative change.
Access to legal representation is also a key component. If you are a guest worker lawfully present in the United States under the H-2A or H-2B visa programs and have been subjected to abuse, exploitation, or injustice by your employer, you may need an attorney who understands the complex intersections between employment and immigration law.
At Matern Law Group, our attorneys recognize the complexities in guest worker litigation and have experience navigating these issues. We are dedicated to protecting employee rights and pursuing justice that creates positive change for clients and the broader community. Please do not hesitate to contact Matern Law Group for a free consultation.
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[1] https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-temporary-agricultural-workers
[2] https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers
[3] https://www.splcenter.org/news/2015/07/14/20-million-settlement-agreement-reached-labor-trafficking-cases-coordinated-splc-behalf
[4] https://www.urban.org/urban-wire/why-human-trafficking-case-against-signal-international-matters