H-2A Forced Labor Exposes “Legal Pathways” Flaws

Enrique Balcazar, 37, and Elizabeth Balcazar, 21, operators of Balcazar Nature Harvesting, LLC (BNH), were sentenced in Federal court for using the H-2A agricultural visa program to import forced labor. Enrique received 40 months in prison along with fines, and his daughter received time served and fines. BNH was fined approximately $508,000 in restitution to 55 H-2A employees. This is just the latest in a long line of forced labor exploitation cases in the H-2A program. For those who believe legal pathways allow aliens to “come out of the shadows” and avoid labor exploitation, it should serve as a wakeup call.

BNH recruited 55 Mexican agricultural workers to come to the United States with the promise of fair pay and safe working conditions, as required by the laws and regulations governing the H-2A program. The multitude of agencies governing the H-2A process all signed off on their visas and the bargain was struck. Immediately, things went awry. BNH seized their passports and visas upon arrival. There are plenty of documented cases in H-2A where employers are seizing travel and immigration documents from employees. This is a method of gaining absolute control over the alien’s movement. It would be akin to an employer seizing an American’s driver’s license, wallet, and phone when they arrived at the office each day.

The company would force the employees to work 80-90 hours a week while only paying them for 40 hours. However, they were also illegally deducting from that pay the cost of housing, food, and equipment. Enrique would brandish and discharge firearms to intimidate the employees and lock their living quarters at night and post armed guards. Some of the aliens eventually escaped this forced labor camp and spoke to authorities.

It is difficult to fathom that this all occurred in the most regulated temporary employment visa in the country. Multiple agencies spanning three Federal departments have a role in approving an H-2A visa. Despite that, forced labor fact patterns like the one described above are happening at an alarming frequency.

Mike Rios, a Department of Labor official involved in enforcement of H-2A regulations, described H-2A recruiters as “traffickers” and said, “Unfortunately, recruiters take advantage of the most needy, the desperate, the ones who will give someone almost anything they own … for the opportunity to work in the U.S.” This is backed up by independent studies that found labor violations rampant in H-2A.

Notably, the United States Congress attacked Mr. Rios by claiming his comments backing up the convictions and lawsuits connected to forced labor in H-2A indicated a prejudice against agriculture employers. Both the House of Representatives and the Senate are still seeking ways to expand the H-2A program as they sweep the vast exploitation under the rug.

This makes sense when you realize that a crucial argument for expanding legal employment opportunities for foreign workers focuses on the ability to reduce labor exploitation. The Center on Budget and Policy Priorities wrote:

“For example, unscrupulous employers can exploit immigrants without work authorization by paying them less than the minimum wage (or avoiding paying them for work performed) and subjecting them to poor working conditions — undercutting wages and job quality for U.S.-born workers and immigrants with work authorization.”

The United Nations Network on Migration wrote:

“Regular pathways contribute to reducing the risk of migrants becoming vulnerable to sexual and gender-based violence, abuse, exploitation and exclusion, and ensure the protection of their human rights, including labour rights, decent work and social protection, and access to services while facilitating integration into the community of the destination country. Pathways for regular migration also benefit all countries, helping them to build strong communities, contributing to sustainable development, responding to labour market needs, strengthening their capacity to identify who enters, transits through and remains in the territory, as well as supporting the rule of law by reducing human trafficking and other exploitation, and curbing migrant smuggling across their borders.”

The International Organization for Migration wrote:

“There is an urgent need for national governments to recognize the close connection between the aims of achieving safe, orderly and responsible migration and preventing human trafficking, modern slavery, and forced labour. Governments need to close gaps in criminal and labour laws and provide protections for migrants, to ensure vulnerable migrants are protected.”

The foundation of this argument is that the problem of forced labor and other assorted labor exploitation of foreign workers is due to the lack of legal pathways. Yet, the H-2A program is a prime example, though certainly not the only one, of how this argument is fundamentally unsound. The reason is obvious: legal pathways only protect workers if the regulations governing those workers are effectively enforced. The H-2A program alone has hundreds of thousands of foreign workers admitted to the United States each year. Comparatively, the staff dedicated to enforcing the regulations governing the program are miniscule.

Even assuming that the Federal government is making enforcement a priority (which is far from evident in the United States), there are simply not enough resources to regulate the legal pathways for temporary employment of foreign workers. It is common to see the industries with high concentrations of foreign workers appear regularly on the Department of Labor’s Low Wage/High Violation list. Wage theft is rampant across visa categories. Thus, expanding legal pathways to employment without concordant expansion of the enforcement regime will simply shift the exploitation to the legal sphere.

The H-2A program is a stark example of this. In 2021, the Department of Labor certified around 317,000 jobs under the H-2A program. This was six times more than in 2005. In other words, this is a great test of the theory that expanding legal pathways would reduce exploitation of foreign workers. As shown by the avalanche of convictions, lawsuits, and independent reports across the board, the expansion of use of H-2A visas has correlated with the growing examples of forced labor and other abuse of H-2A workers. Simply providing a visa to a foreign worker will not reduce his likelihood of exploitation. This is demonstrated clearly by the facts staring us in the face. Only reducing the numbers of foreign workers to a manageable level and prioritizing enforcement of our immigration and labor laws can reduce exploitation.

JARED CULVER is a Legal Analyst for NumbersUSA