By Deborah Notkin, AILA Past President

Last month, I was honored to be invited to be a “judge” at a program on migrant workers rights organized by the Centro de Derechos de Migrantes inZacatecas,Mexico.The organization is involved in seeking legal recourse for migrant workers, primarily entering theUSon H-2b visas, for payment of required wages and other worksite violations.The “judges” met with a migrant workers organization and came up with a list of solutions to avoid the problems.

By far, everyone agreed that the problems began with “recruiters” who charged substantial sums (typically around $1,000) from each hopeful temporary worker and this money was rarely returned if there was not a visa available.This problem seems to reach epic proportions during a period of prosperity in theUSwhen the H-2b visa cap of 66,000 workers doesn’t provide sufficient visas to fill needs. Under both Mexican law and now under the rules of the current H-2b regulations, recruiters are prohibited from charging fees to the prospective migrant workers but the judges found that enforcement needed to be stepped up.

We also concluded that workers needed to be given a notice of the terms of employment including salary and the workers stressed portability once they entered theUSif they were employed by a non-compliant employer.This portability plan was recommended which would require the worker to find another position in the same field, such as construction, and to have a salary offer for no less than the required salary on the initial application.

In speaking to these workers and some government officials on both sides of the border who attended the program, it was clear that there are many compliant employers as well as employers who were ignorant of the H-2b rules and depended on the “legal services” of unscrupulous recruiters and employers who knowingly violated the law.

Many of the workers had spouses currently in theUSworking in apparently compliant H-2b employment situations, happy with the prevailing wages that were being paid. The workers who benefited most from the H-2b program were those who had located good employers and returned annually to work for the same employer on a seasonal basis.

Without adequate enforcement, the H-2b program can be a “hit or miss” proposition for those going to work for a specific employer for the first time.Not all recruiters, also referred as staffing staffing organizations are unscrupulous but unfortunately, some who have gotten involved in the H-2b program, on both sides of the border, are a big part of the problem.

Zacatecas,Mexicois a beautiful colonial city and in general, the workers I spoke with did not have a desire to immigrate permanently to theUS.In going forward with comprehensive immigration reform,I am hopeful that we will have a reasonable visa to handle future non-professional workforce needs that allows both a path to permanent residence or a circulatory migratory pattern, at the discretion of the migrant worker.

I am also hopeful that this system will recognize the legitimate needs of honest employers, and allow every one of these employers the chance to demonstrate their need for these workers, whether they are the types of business that traditionally use the H-2b worker, such as the landscaping industry, or an employer with unusual needs, such as skilled sail making in New England.In this vein, the concept of a “Commission” as it is put forth in some quarters, would limit and prevent worker visas which would be of common benefit to workers and US employers.We need to change our broken system, but in doing so not to limit the legitimate future workforce needs of employers in theUS.

Most of all, I will never forget the two strong and dignified women who won a class action suit for discrimination while in H-2b status.Their abrasos (hugs) when I leftwill stay with me forever.