2017] REGULATING THE HUMAN SUPPLY CHAIN 447
migrant workers entering the United States on such visas was nearly double
that of undocumented arrivals—the inverse of just ten years earlier.2
U.S. employers’ shift to migrant worker visas has given a newly prominent
place to intermediaries abroad in the country’s low-wage work structures. In
moving toward greater reliance on legal temporary migrants as a low-wage
labor force, the United States is joining a trend already dominant around
much of the globe. Almost all low-wage temporary visa programs worldwide,
including in the United States, require the employers to hire the worker while
she is still in her home country, which makes an intermediary a practical
necessity if the employer does not plan to travel there to contract workers.3
Recent estimates put the number of low-wage legal temporary migrant
workers in the United States recruited via intermediaries at 80% of the total
or higher,4 on par with figures in other migration corridors around the
world.5 By contrast, U.S. firms rarely use recruitment entities located in other
countries when hiring undocumented immigrants. Instead, they tend to hire
2. See infra note 44 and accompanying text.
3. CENTRO DE LOS DERECHOS DEL MIGRANTE, MONITORING INTERNATIONAL LABOR
RECRUITMENT: A CROSS-VISA EXPLORATION OF REGULATORY CHALLENGES 10–13 (2011), https://www.
4. Megan Twohey et al., Wanted: Foreign Workers—and the Labor Brokers Accused of Illegally Profiting
from Them, REUTERS INVESTIGATES (Feb. 19, 2016, 3:20 PM), http://www.reuters.com/investigates/
special-report/workers-brokers (“Since the 2007 fiscal year, for instance, Reuters found that
intermediaries were involved in helping secure visas for 80 percent of the 2 million foreign workers
approved for agricultural and other low-skill jobs.”). A survey of 382 Mexican H-2A migrants across
seven states in Mexico by a coalition of five nongovernmental organizations puts the percentage at
94.5%. JORNALEROS SAFE, EXECUTIVE SUMMARY: MEXICAN H2A FARMWORKERS IN THE U.S.: THE
INVISIBLE WORKFORCE 7–8 (2013), https://www.splcenter.org/sites/default/files/d6_legacy_files/do
wnloads/resource/executive_summary_jornaleros_safe.pdf (discussing the number of interviewees
and percentage using intermediaries). Studies that rely on gov ernment docume nts rather tha n worker
interviews reach lower numbers. For example, a Centro de los Derechos del Migrante report based on
Department of Homeland Security (“DHS”) applications noted that almost 62% of workers applying
for H-2A and 84% of those applying for H-2B visas in 2011 reported having used a recruitment agent.
CENTRO DE LOS DERECHOS DEL MIGRANTE, RECRUITMENT REVEALED: FUNDAMENTAL FLAWS IN THE H-2
TEMPORARY WORKER PROGRAM AND RECOMMENDATIONS FOR CHANGE 11 n.12, http://www.
H-2-Temporary-Worker-Program-and-Recommendations-for-Change.pdf (last visited Nov. 4, 2016).
Likewise, the Government Accountability Office (“GAO”) states that approximately 44% of U.S.
employers use formal intermediaries for H-2 visa recruitment. See U.S. GOV’T ACCOUNTABILITY OFFICE,
H-2A AND H-2B VISA PROGRAMS: INCREASED PROTECTIONS NEEDED FOR FOREIGN WORKERS 26 (2015),
http://www.gao.gov/assets/670/668875.pdf. The 44% number is based on the GAO’s review of H-2
petitions filed by employers with DHS. The GAO reports that, in addition to the 44%, “some employer
industry groups” state that a significant number of employers deputize a foreman or returning migrant
as their recruiter. Id. at 27.
5. See DOVELYN RANNVEIG MENDOZA, MIGRATION POLICY INST., REGULATING PRIVATE
RECRUITMENT IN THE ASIA–MIDDLE EAST LABOUR MIGRATION CORRIDOR 2 (2012), http://www.
migrationpolicy.org/research/regulating-private-recruitment-asia-middle-east (finding that 80%
of migrant workers in the Asia–Middle East corridor are recruited by intermediaries, rather than
by employers directly).