California is on the brink of enacting the first significant law to combat international labor recruitment abuses and protect 300,000 temporary migrant workers. Will Governor Newsom sign the bill?
- There are at least 310,500 migrant workers in California—employed through temporary work visa programs—making it the largest host state. These temporary migrant workers are vulnerable to abuses of labor recruiters that connect workers to jobs in the United States.
- The abuses of labor recruiters have included requiring the payment of illegal fees to obtain jobs which can result in debt bondage, as well as cases of wage theft, discrimination, human trafficking, and other abuses. But since these U.S. work arrangements are being set up abroad, it is difficult to regulate the behavior of recruiters.
- Congress has failed to act to protect workers who are recruited abroad through temporary work visa programs. A California law was enacted in 2014 to fill this gap. Senate Bill (SB) 477 created a registration system for labor recruiters, providing transparency and tools to hold recruiters accountable for abuses. However, that law has been interpreted to apply only to the H-2B visa program, one of the many visa programs that are used to hire workers in California. H-2B workers only account for a small share of the state’s temporary migrant workers, less than 1%.
- Assembly Bill (AB) 364, which passed the California Assembly and Senate, would expand the reach of SB 477 to nearly all temporary work visa programs, thus protecting an estimated 300,000 migrant workers. It would also give California the authority to monitor and regulate labor recruiters doing business in the state and more proactively prevent labor abuses and trafficking.
- California is on the brink of passing the first significant reform of the international labor recruitment process. But will Governor Newsom sign AB 364? He must decide whether to sign it by September 30, and immigrant and worker advocates are calling on him to do so.
Two million migrant workers are recruited abroad and hired to work in the United States through temporary work visa programs. These temporary migrant workers are sometimes referred to as “guest” workers or “nonimmigrants” because their work visas provide only a temporary status. These workers are some of the most vulnerable in the entire United States.
The visa programs used to hire them have expanded at a rapid pace, but the rules and frameworks of the programs permit employers to control the bureaucratic process and the immigration status of their employees with work visas, keeping migrants indentured and often exploited by employers.
The power that visa programs give employers, and the individuals and companies that they contract with to recruit workers, is then used to undercut wages and labor standards for migrants and similarly situated workers—a power imbalance we know from experience has led to human trafficking in California and nationwide. Many of the worker abuses occur at the point of recruitment, before migrant workers ever depart their home countries.
California is the largest host state for temporary migrant workers, according to data from the U.S. Department of Homeland Security (DHS), which should be no surprise given that the Golden State hosts nearly one quarter of all immigrants in the United States. The sheer size of the temporary migrant worker population means their protection is an area of particular concern to immigrant and worker advocates in the state. The concern for the hundreds of thousands of temporary migrant workers in California has led to multiple legislative efforts to protect those workers during the recruitment process.
If the latest proposal—authored by Asm. Freddie Rodriguez and known by its bill number AB 364—were to become law, it would represent the first significant reform of the international recruitment process, something that immigrant and workers advocates have long called for. It has also been hailed as an essential tool to fight human trafficking in California.
AB 364 is now on Governor Gavin Newsom’s desk and he will soon decide whether to sign or veto it. What follows is some background on the problems caused by unregulated labor recruitment in temporary work visa programs and a discussion of how AB 364 would go a long way to fixing them.
Many abuses of temporary migrant workers occur at the point of recruitment and Congress has failed to pass federal legislation that addresses this problem
As noted above, one of the points in the hiring and employment process where many of the abuses of migrant workers occur is during recruitment, which often takes place in countries of origin. There are countless cases of wage theft, human trafficking, and other exploitation that have occurred at the hands of labor recruiters. But by nature of occurring abroad, it is difficult to regulate the behavior of recruiters and employers that rob and cheat migrant workers without the passage of additional laws that target and punish these actions.
Congress has failed to act to protect workers who are recruited abroad. It last made an attempt to regulate the international recruitment of migrant workers in 2013, as part of S.744, the comprehensive immigration reform legislation that passed the Senate in 2013 but was never voted on in the House of Representatives. The section on foreign labor recruitment in S.744 contained many useful elements, including creating a new program requiring foreign labor contractors who recruit migrant workers to register with the U.S. Department of Labor (DOL), to disclose certain information about recruited workers, employers, subcontractors, and job terms, and to post a bond.
The provisions would also have prohibited discriminating or retaliating against workers, banned the charging of recruitment fees to workers, implemented a new complaint and investigation process along with administrative fines (to be drawn from bond funds), and created a private right of action, allowing either the government or an aggrieved person to bring a civil action to enforce the rights of internationally recruited migrant workers.
Because S.744 never became law, all migrant workers in the United States who are recruited abroad—including 2 million temporary migrant workers—remain vulnerable to recruiters and employers who can often take advantage of them with impunity.
AB 364 fixes what Congress failed to pass federally, creating uniform robust protections for all temporary migrant workers coming to California. The federal government has failed to enact any similar protections for two decades. Indeed, the current patchwork federal system—which lacks coherence and real protections—is what makes migrant workers easy targets for abuse. AB 364 will give California the authority to monitor and regulate labor recruiters doing business in the state and to more proactively prevent labor abuses and trafficking.
There are at least 310,500 temporary migrant workers in California, making it the largest host state
California is the state with the largest number of migrant workers who are vulnerable to the abuses of labor recruiters. Table 1 is reproduced from the most recent DHS report on the nonimmigrant population (i.e., migrants who hold temporary visas), broken down by broad category of temporary visa. DHS data show that there were 300,000 nonimmigrants who were “temporary workers” in a long list of visa programs included by DHS in 2019. This represents nearly one-fifth of all temporary migrant workers counted by DHS. In their report, DHS explains that their methodology is not a direct count of workers, but an estimate they have developed according to available data. (My own methodology suggests that the true number of individual workers employed on nonimmigrant visas is just over 2 million, significantly higher than DHS’s estimate of 1.6 million.)
California is the U.S. state that hosts the largest number of temporary migrant workers—nearly one-fifth: Resident nonimmigrant population by category of admission and state of residence, fiscal year 2019
|Total||Temporary workers||Students||Exchange visitors||Diplomats and other representatives|
Note: Detail may not sum to total due to rounding; percentages are column percentages and were calculated prior to rounding; data include dependent family members. See report cited in source for the methodology used by the U.S. Department of Homeland Security to estimate the nonimmigrant population and for the list of temporary work visas that were included in the estimate.
Source: Figure reproduced from Table 3 in Bryan Baker, Population Estimates of Nonimmigrants Residing in the United States: Fiscal Years 2017-2019, Office of Immigration Statistics, U.S. Department of Homeland Security, May 2021.
In addition to the workers counted in the “temporary workers” columns in Table 1, there are also 50,000 exchange visitors listed, which include students and workers in the J-1 visa program, as well as their spouses and children who can accompany them with J-2 visas. Many of the J-1 holders, namely the foreign college and high school students, should not be counted as workers. But data provided by the State Department offer a more detailed breakdown of the number of J-1 visa holders, showing that in 2021, there were 10,500 J-1 workers in the J-1 employment programs—making the total number of temporary migrant workers employed in California at least 310,500.
These 310,500 temporary migrant workers account for 1.6% of all workers in California’s labor force—not an insignificant number by any means.
Recruitment abuses are common and it is difficult to hold recruiters and employers accountable under current law
It is important to understand how recruitment abuses occur. Below is a brief explanation, followed by a discussion of how AB 364 can prevent worker exploitation and protect temporary migrant workers.
First and foremost is the problem of illegal recruitment fees and debt bondage, which are far too common.
Temporary migrant workers can face abuse even before arriving in the United States: many are required to pay exorbitant fees to labor recruiters to secure U.S. employment opportunities, even though such fees are usually illegal. Those fees leave them indebted to recruiters or third-party lenders, which can result in a form of debt bondage. After arriving in the United States, temporary migrant workers may find out the jobs they were promised don’t exist. And in a number of cases, temporary migrant workers have become victims of human trafficking—with some being forced to work in the sex industry.
Contrary to popular belief, it’s not just farmworkers and other temporary migrant workers in low-wage jobs suffering from the abuses that pervade temporary work visa programs: college-educated workers in computer occupations, as well as teachers and nurses, have been victimized and put in “financial bondage” by shady recruiters and staffing firms that steal wages, forbid workers from switching jobs or taking jobs the recruiters don’t financially benefit from, and file lawsuits against workers if they try to change jobs or quit.
Accountability is the other major problem because temporary work visa programs permit employers to circumvent U.S. anti-discrimination laws and segregate the workforce.
While U.S. anti-discrimination laws are intended to make workplaces fairer and more equal by prohibiting discrimination in hiring and employment on the basis of factors like race, color, sex, religion, and national origin at the point of hire—on paper, they apply to temporary migrant workers who are recruited abroad—in practice, employers are able to circumvent them. This happens because workers are being selected by recruiters in countries of origin with no oversight and where it is hard to regulate. Thus, employers have the ability to reclassify entire sectors of the U.S. workforce by race, gender, national origin, and age through temporary work visa programs.
This occurs through recruiters and employers limiting access to jobs made available to workers based on employer preferences for national origin, gender, and age, allowing them to sort workers into occupations and visa programs based on racialized and gendered notions of work. Thanks to temporary work visa programs, an employer may select an entire workforce composed of a single nationality, gender, or age group—for example, selecting only young Mexican men for farm jobs with H-2A visas, or young Indian men to work as computer programmers with H-1B visas, or young women from Eastern Europe for work in restaurants and amusement parks with J-1 visas. The large shares of visas issued to specific countries of origin, and the limited demographic data available, provide evidence that this is occurring, and websites exist that allow employers to browse the profiles of workers on employment agency websites that advertise workers like commodities.
Employers and recruiters can also weed out workers who might dare to speak out against unlawful employment practices, assert their legal rights, or organize for better working conditions by joining or forming a union. They can do this by refusing to hire workers whom they think will be likely to complain, and retaliating against workers who do speak up or complain—for instance, by firing them and effectively forcing them to leave the country, or by threatening to blacklist them from being hired for future job opportunities, or simply not rehiring them.
AB 364 can prevent abuses and protect temporary migrant workers by international labor recruiters that recruit for jobs in California and benefit businesses that are acting ethically
To remedy the problems created by the unregulated recruitment of temporary migrant workers, the California legislature took a significant step by passing SB 477, which former Governor Jerry Brown signed into law in 2014. That bill created a registration system for labor recruiters, which the bill refers to as “foreign labor contractors.” The key elements of the law include:
- prohibiting the payment of any fees by migrant workers in order to obtain their temporary jobs;
- requiring foreign labor contractors to register with the state, with the state then creating a list of registered contractors which gets posted publicly, bringing transparency to the system so that workers and employers know who the registered foreign labor contractors are;
- requiring foreign labor contractors to post a bond and provide an address where they can accept service of process when they register in California;
- prohibiting foreign labor contractors from being approved for registered status if they have been found to have violated anti-trafficking laws, work visa program rules, or other labor laws;
- requiring employers to use foreign labor contractors that have been registered with the state, which allows employers to benefit from a safe harbor provision in the bill that exempts them from joint and several liability for the conduct of registered foreign labor contractors;
- requiring foreign labor contractors to fully disclose job terms and conditions to migrant workers during the recruitment process, through a written contract provided to the worker in a language they can understand, which must also be provided to the California Labor Commissioner; and
- imposing civil and criminal penalties for violating the requirements of the law, and creating a right of action for the California Labor Commissioner or a worker to file suit for damages and injunctive relief.
While SB 477 is an excellent model for regulating international labor recruitment, the law has been interpreted to apply to only one work visa program, H-2B, which accounts for a tiny share of the temporary migrant workers employed in California, less than 1%. The California Labor Commissioner’s office has been developing and implementing the new registration system for H-2B employers and recruiters, but without the law applying to other visas, it is unlikely to have much of an impact.
That’s why Asm. Rodriguez introduced AB 364, a bill that would clarify that the foreign labor contractor registration system should cover nearly all temporary migrant workers who are recruited to work in California, including workers in the H-1B, H-2A, L-1, O, P, and TN visa programs, programs rife with labor abuse and human trafficking. The only visa program that will be exempted is the J-1 visa, unfortunately—a cultural exchange program that has morphed into a temporary work program—and is mainly used to recruit workers like au pairs, lifeguards, and hotel and restaurant workers. In effect, that leaves 10,500 migrant workers unprotected from recruitment abuses. Nevertheless, AB 364 would ensure that SB 477’s protections are not limited to the approximately 2,100 H-2B workers in California but would cover 300,000 of the state’s temporary migrant workers.
Governor Newsom can make history and protect migrant workers by signing AB 364
Both chambers of the California legislature passed AB 364 and the bill has been enrolled, meaning it is on the Governor’s desk. Gov. Newsom must either sign or veto it by September 30th.
A long list of organizations, government agencies, and businesses that work with, on behalf of, and employ migrant workers support AB 364’s simple fix that will go far to protect California’s migrant workers, and are urging Gov. Newsom to sign it. The governor has a chance to show once again that California can lead the way—this time with respect to international labor recruitment—remedying a gap in protection that Congress has been reluctant to fix, and in the process, create a new model that can be emulated by other states.
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