The thirteenth amendment's uninvited guest: unmasking the constitutional dilemma of the H-2A guest worker program in the United States

• Pages: 93-119
• Date: 01 October 2024
• Published date: 01 October 2024
• Author: Dexter L. Woods, IV
• Subject Matter: Derecho Público y Administrativo

NOTE

THE THIRTEENTH AMENDMENT’S UNINVITED

GUEST: UNMASKING THE CONSTITUTIONAL

DILEMMA OF THE H-2A GUEST WORKER

PROGRAM IN THE UNITED STATES

DEXTER L. WOODS, IV*

ABSTRACT

This research paper will explore the different conf‌licts between the H-2A

guest worker program in the United States and the Thirteenth Amendment,

which prohibits indentured servitude. It will delve into the structure of

migrants’ working contracts pertaining to their guest worker programs, as

well as the alarming conditions in the guest worker environments.

The examination of the guest worker initiatives, labor conditions, contrac-

tual agreements, freedom of movement restrictions, and wage and living condi-

tions will hopefully provide the necessary insight into the darker side of guest

worker programs. This exploration will also extend to include the legal frame-

work and oversight governing these programs, assessing their effectiveness in

preventing Thirteenth Amendment violations. In forming the foundation for a

thesis, this paper will analyze the legal interpretations of the Thirteenth

Amendment’s prohibitions on indentured servitude, as well as discuss how the

H-2A program’s characteristics pose a violation of those legal interpretations.

Because H-2A visas are granted primarily for agricultural type jobs and because

agricultural jobs are the ones most often subject to exploitation and poor working

conditions, these are the guest worker programs that begin to look most like slav-

ery. Accordingly, potential violations with the Thirteenth Amendment arise.

*Georgetown Law, J.D. 2025. © 2025, Dexter L. Woods, IV. I would like to thank Professor Michele

Bratcher Goodwin for her feedback and invaluable expertise on the Thirteenth Amendment, and the staff of

the Georgetown Immigration Law Journal for the hard work they put in to reviewing this Note. A special

thanks to my family and friends for their continued support and encouragement. This Note is dedicated to the

H-2A workers across the United States whose labor sustains the nation’s agricultural industry, even as they

endure systemic injustices and exploitation under the very programs meant to regulate their employment. May

their dignity and humanity never be forgotten in the pursuit of reform. A los trabajados agrı

´colas del programa

H-2A en los Estados Unidos: esta Nota se escribe en reconocimiento de sus contribuciones indispensables y

en solemne reconocimiento de la crueldad estructural incrustada en los sistemas que rigen su labor. Que sus

luchas impulsen la rendición de cuentas y el cambio.

93

The paper will then provide solutions for these violations, centering mostly

on stricter oversight through the Thirteenth Amendment of working condi-

tions, compensation, and contractual arrangements. Through an application

of a novel “badges and incidents” test, this paper will argue that Congress is

within its power to effectuate the change necessary to bring the program into

compliance with the Thirteenth Amendment. By analyzing this issue through

the lens of intending to promote human rights for migrants coming into the

United States, this paper will provide a helpful rhetorical framework for

engaging in discussions moving forward to solve this issue.

TABLE OF CONTENTS

I. BACKGROUND OF H-2A VISAS . . . . . . . . . . . . . . . . . . . . . . . . . . 95

A. Why The Program Exists and its Evolution . . . . . . . . . . . . 95

B. The Process of Securing an H-2A Visa ............... 96

II. BACKGROUND OF THE THIRTEENTH AMENDMENT . . . . . . . . . . . . . . . 97

A. The Impetus of the Thirteenth Amendment............ 98

B. The Importance of the Thirteenth Amendment. . . . . . . . . . 99

III. ISSUES PRESENT IN H-2A VISA WORK . . . . . . . . . . . . . . . . . . . . . 100

A. Working Conditions and Human Rights Violations . . . . . . 101

B. Conf‌licting Perspectives on the Program . . . . . . . . . . . . . 105

IV. BADGES AND INCIDENTS OF INDENTURED SERVITUDE AND SLAVERY . . 107

A. Def‌ining Badges and Incidents of Slavery. . . . . . . . . . . . . 107

B. The Two-Pronged Approach to Def‌ining Badges and

Incidents .................................... 108

V. REVAMPING LEGAL OVERSIGHT OF THE H-2A WORKER PROGRAM . . . 109

A. The Failure of the Current System of Oversight. . . . . . . . . 109

B. The Promising Potential of Oversight Through the

Thirteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 110

1. The Oversight of Prohibiting Wage Theft........... 111

2. The Oversight of Prohibiting Coercion and Unfair

Contracting ..................................... 112

3. The Oversight of Debt Bondage/Debt Peonage. . . . . . . 114

94 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 39:93