Relief for guestworkers: employer perjury as a qualifying crime for U Visa petitions.

• Author: Benz-Rogers, Lucy

Introduction I. The Federal Guestwork Program A. The Guestworker Program 1. Employer Attestations Under Penalty of Perjury a. ETA Form 9142 b. ETA Form 9142: Appendices A and B c. 1-9 and 1-129, Petitions for a Non-Immigrant Worker 2. Further Regulatory Requirements B. Applicable Federal Perjury and Fraud Law 1. Common Elements of Perjury a. Materiality b. State of Mind Requirement C. Fraud in Foreign Labor Contracting D. Obstruction of Justice II. The Reality of Guestworker Abuses A. Fraudulent and Coercive Recruitment B. Wage and Hour Violations C. Safety Conditions D. Living Conditions E. Intimidation and Retaliation III. The U Visa Solution A. U Visas 1. Qualifying for a U Visa a. Substantial Physical or Mental Harm b. Providing Credible Information c. Certifying the Victim's Helpfulness d. Activity Within the United States B. The Potential Impact of U Visas: A Viable Solution 1. The U Visa Application and Benefits Conclusion INTRODUCTION

Migrant workers in the federal guestworker program make up an important part of the United States workforce and economy. The Department of State granted over 115,000 H-2 guestworker visas during the 2012 fiscal year. (1) These workers often enter into debt with predatory lenders in their home countries in order to pay illegal recruitment fees and travel costs, and leave their families behind to come to work in the United States. (2) Guestworkers are also frequently victims of false or misleading statements about the job opportunities awaiting them and are subject to workplace threats and mistreatment upon arrival. (3)

The guestworker program ties a foreign worker to a single United States employer and prevents the worker from changing jobs or rejecting employer demands without losing his or her legal status in the United States. If a worker has a complaint, he or she is at risk of being fired and having to return to his or her home country. (4) Consequently, legal challenges against guestworker employers have been hampered by guestworkers' fears of speaking out about workplace abuses. This allows violations like unpaid wages, unsafe working conditions, inadequate housing facilities, and retaliation to occur with impunity. (5) Filing complaints is difficult for guestworkers because most do not speak sufficient English and lack resources like transportation, time, and money to pay for legal assistance. (6) Even if a guestworker does succeed in filing a complaint, the employer may still effectively shut her out of the guestworker program by refusing to hire her again and informally blacklisting her. (7)

One supposed safeguard against such exploitation is that employers are required to attest under penalty of perjury to various conditions in the application to the government to receive guestworkers. These conditions include promises to pay the minimum or prevailing wage as determined by the Department of Labor (DOL), uphold health and safety laws, and not retaliate against workers who make complaints. (8) Employers must also comply with all immigration laws and must register their employees with the Department of Homeland Security (DHS). There is little to no oversight of the guestworker programs, however, which creates a culture of fear among guestworkers. While employers are legally bound by the terms of the guestworker programs and applicable labor laws, enforcement is based upon the employers agreeing under penalty of perjury to abide by these terms. This "attestation model" places the onus on the workers to report violations and enables unscrupulous employers to ignore their legal obligations. Guestworkers face a difficult power imbalance that leads many to quietly acquiesce to substandard wages and working conditions.

One potential remedy for guestworkers who are subjected to workplace violations is the U Visa. U Visas are granted to noncitizen victims of specific crimes who cooperate with United States authorities in reporting and investigating the crime. (9) Some of the statutorily enumerated qualifying crimes for a U Visa that directly impact guestworkers are perjury, fraud in foreign labor contracting, and obstruction of justice. (10) Many employers knowingly and willfully violate the terms of employment contracts and disregard the conditions placed upon them by the DOL certification they sign under penalty of perjury, which leaves them potentially liable for perjury, fraud in foreign labor contracting, or obstruction of justice. (11)

This Note examines the legal and strategic viability of using these employer violations as qualifying crimes for U Visas, and how U Visas might be used as a tool for aiding guestworkers and putting an end to employer abuses. Part I introduces the federal guestworker program and the employer certification process required for guestworkers. After describing these obligations, Part I also introduces applicable federal perjury statutes and discusses their application in the guestworker context for those employers who violate their obligations. Part II highlights the realities of the exploitation that guestworkers face and how these abuses violate the terms of the guestworker program and federal labor laws. Part III provides background on the U Visa remedy for noncitizen victims of certain enumerated crimes, and discusses how employer perjury and fraud could be used to remedy workplace violations by employers. This Note concludes by recommending that advocates for guestworker rights pursue U Visas for employer fraud and perjury based on workplace abuses and offers suggestions for creating successful petitions.

1. THE FEDERAL GUESTWORK PROGRAM

   1. The Guestworker Program

      The United States has a long history of hosting foreign guestworkers, particularly in agriculture. Facing labor shortages during World War II, the United States reached a bilateral agreement with Mexico to receive temporary agricultural workers from Mexico. (12) This program, known as the Bracero program, brought millions of Mexican workers to the agricultural fields of the United States between 1942 and 1964. (13)

      The current guestworker program is comprised of the H-2A program for agricultural workers, and the H-2B program for workers in other industries such as hospitality or industrial work. (14) The current H-2A and H-2B visa scheme was not devised until 1986. (15) The visas themselves are granted by DHS, pending certification from the DOL allowing the employer to host temporary foreign workers. (16)

      An H-2A worker is a noncitizen with a residence in a foreign country who comes to the United States on a temporary basis to perform agricultural labor when unemployed domestic workers cannot be found. (17) There is no annual cap on the number of H-2A visas that can be issued. (18) To participate in the H-2A program, the agricultural employer must first obtain certification from the DOL. (19) The Secretary of Labor must certify that there are not enough domestic workers willing to do the work described in the petition, and that the temporary employment of the foreign worker will not adversely impact the wages and working conditions of American employees. (20) A typical H-2A worker would work on a farm helping to cultivate and harvest crops. (21)

      An H-2B worker is a noncitizen with a residence in a foreign country who comes to the United States temporarily to perform nonagricultural labor. (22) Just as in the H-2A program, an employer must demonstrate that qualified persons in the United States are not available and that the terms of employment "will not adversely affect the wages and working conditions of U.S. workers similarly employed." (23) The job or employer's need must also be one-time, seasonal, during a peak load, or intermittent and for less than one year. (24) Examples of some of the larger categories of H-2B employment include factory and industrial workers, and low-wage service industry employees such as hotel workers and amusement park or restaurant employees. (25)

      One key feature of both the H-2A and H-2B visas is that the employees are bound to the employer that received the certification to host them. (26) A guestworker is required to leave the United States almost immediately if his or her employment is terminated or he or she does not show up to work. (27) The DOL regulations do allow for the extension of a guestworker visa in certain instances, but this requires finding a new sponsoring employer quickly, and in practice this is rarely a possibility for guestworkers. (28) On the one hand, strictly limiting employment to a single employer in this way is what distinguishes a guestworker program from the general employment-based immigration pool. Nevertheless, it also makes it highly unlikely that the workers will feel empowered and willing to denounce workplace abuses for fear of being shut out of the program completely. This reticence is compounded by the practice of informal blacklisting among employers, blocking workers who speak out against employers from future participation in the program. (29)

      1. Employer Attestations Under Penalty of Perjury

         In terms of enforcement and oversight of the guestworker program, the DOL uses various forms and documentation as part of an "attestation model" that relies on the threat of audits or, even more tenuously, on reports of violations by the workers that might spark an inquiry. (30) The DOL does not engage in a direct analysis of recruitment documents or recruitment procedures. (31) Instead, an employer's application for temporary labor certification is usually quickly and cursorily approved, subject to the attenuated threat of potential audits and penalties to deter fraud and noncompliance. (32)

         The recruitment and hiring process for H-2A and H-2B guestworkers requires the employer to make numerous statements under penalty of perjury about factors such as their hiring process, and the pay and conditions of the work to be performed. (33) As part of the DOL labor certification process and the subsequent...