Migrant laborers work in California’s strawberry fields outside of Salinas in Monterey County on July 30, 1997. (Photo: Andrew Lichtenstein / Corbis via Getty Images)

Immigration arrests have surged (up 43 percent) under Trump, but deportations have dropped. That means detentions are on the rise. Meanwhile, a creeping labor shortage is reaching fever pitch as US Immigration and Customs Enforcement (ICE) continues its crackdown on employers.

Catalyzed by the agricultural labor shortage — which has been years in the making, thanks to low wages, new requirements that employers comply with E-Verify immigration reforms and the crackdown on non-citizens in general — a significant immigration reform that could reshape the labor market is now being pushed in Congress. The bill, which is currently awaiting action after it was passed by the House Judiciary Committee in late October, proposes a massive overhaul and expansion of the federal government’s decades-old H-2A agricultural visa program. Critics say that if passed, the reform could lead to millions of virtually indentured workers.

The ability for workers to take employers to court would be hampered by the reform, which prohibits workers from bringing “civil actions for damages against their employers.”

Under the current H-2A program, which itself has produced conditions akin to modern-day slavery, employers pay for foreign workers to be transported to their farms and then send them back home (often to Mexico) once the job — such as seasonal berry-picking — is done.

This legal migration route — used by Trump at Mar-a-Lago — has exploded under his administration. The American Farm Bureau Federation, a top agriculture lobby, calculates that the number of H-2A workers for berry and apple farms spiked 43 and 30 percent respectively in 2017, compared to 2016.

A massive expansion of the program is now on the table. The proposed reform, known as the Agricultural Guestworker Act (H.R. 4092), represents a worrying coming-together of ethno-nationalist interests who advocate “legal” migration, and corporate interests eager for cheap, guaranteed labor. Non-citizens and guest workers are not the only ones who would suffer under the new program; US workers, whose wages would be massively undercut by the expansion, would also lose out.

The bill, as it passed the US House Judiciary Committee on October 25, 2017, would replace the H-2A program with an “H-2C” program that expands the program beyond agricultural work to industries like meat and poultry processing, forestry and logging, and fish farming. It would also gut what few protections and guarantees workers currently enjoy under the H-2A program. Farmworkers in the United States are already excluded from labor protections, but they can still sue their employers for low wages and workplace violations. The ability for workers to take employers to court would be hampered by the reform, which prohibits workers from bringing “civil actions for damages against their employers.” According to Catherine Crowe, an organizer with the Farm Labor Organizing Committee (FLOC) of the AFL-CIO, the bill “makes it even harder for farmworkers to bring claims when their rights are violated.” It also forces farmworkers to go through a mandatory mediation process before filing a lawsuit.

The proposed H-2C program threatens to establish a convoluted form of 21st century legalized indentured servitude.

This ability to sue is critical for H-2A farmworker organizing efforts. Crowe told Truthout that FLOC uses lawsuits to pressure employers to sign union contracts. In fact, it was through this tactic that FLOC was able to win a contract for H-2A workers with the North Carolina Growers Association, which contracts with about 10,000 workers and 700 growers every year, according to Crowe. This contract won workers significant protections not enjoyed under the H-2A program, including the ability to appeal to an independent labor relations board, protections against retaliation and more job security.

However, North Carolina’s Farm Act of 2017, signed by Gov. Roy Cooper in July, cuts off a key tool for worker organizing in the state by making it illegal to settle a lawsuit with a union contract. FLOC, along with Southern Poverty Law Center, the North Carolina Justice Center and others have sued North Carolina, arguing the Farm Act of 2017 violates the First and Fourteenth Amendment rights of more than 100,000 farmworkers. They’ve also filed a motion to block the implementation of the Act until the lawsuit concludes.

The proposed H-2C program threatens to establish a convoluted form of 21st century legalized indentured servitude. It would do away with H-2A program requirements for employers to provide guest workers with health insurance, housing and transportation to and from their home country, and would allow employers to deduct certain costs and the costs of tools from worker wages. For example, if an employer pays for housing or transportation, they could deduct that from worker wages. Shockingly, the bill also allows employers to deduct a flat 10 percent of workers’ wages. Workers would only be able to recoup the deducted wages once they returned to their home country, which Republicans say would “incentivize” them to go home. On top of all this, H-2C would also lower guest worker wages to the minimum wage, well below the current wage set by the Department of Labor that is meant to guarantee that guest workers not undercut US farmworker wages.

Testifying against the bill in October, Rep. Pramila Jayapal (D-Washington) warned of all these new burdens for workers. “These workers,” she said, “are going to be in a terrible economic situation. Reducing wages by 10 percent on top of all this would place them, I think, in a real horrendous situation.” Under the bill, guest workers would only be able to retrieve the deducted wages at a US consulate in their home country. “[This] is costly and extremely burdensome,” Jayapal said. “Moreover, some workers will be in the United States for three years, and would not receive their hard-earned wages until [they return home], years after they have earned them.”

Jayapal also scorned a provision in the bill that forces workers to prove they have complied with the program’s requirements. This, she says, “will lead to abuses. Unscrupulous employers and labor recruiters could threaten to report guest workers for violating program requirements … forcing [workers] to accept substandard wages and working conditions.”

Writing for the agricultural industry publication AGWeb.com, Chairman of the House Judiciary Committee Rep. Bob Goodlatte (R-Virginia) defended the bill, saying it “ensures that the marketplace, not Washington, drives the agriculture industry. It offers workers and employers more choices in their employment arrangements, making it easier for workers to move freely throughout the marketplace, both to seek optimal working conditions and meet farmers’ fluctuating needs.”

This talking point does nothing to convince Jayapal, however, who argued the reform would hurt all workers, and could lead to indentured servitude. “There is no measure in the bill to prevent [worker] recruitment fees, or trafficking,” she said in her testimony.

Under this reform, which is coupled with a proposed national E-Verify reform that would require all US employers to vet their employees through a national electronic database, ethno nationalists get the “legal” migration paradigm they want, and large corporate employers get the guaranteed cheap workforce they’ve so long desired. Meanwhile, US workers, non-citizens and human rights pay the price.

But what if workers in the program want to go home? What if they want out? Rep. Hank Johnson (D-Georgia) is worried guest workers might be forced or coerced to stay. The bill, he said in testimony, lays “the groundwork for a system where they may be barred from leaving.”

That is not all. In an apparent coup in immigration policy, the H-2C program would allow “previously unauthorized farmworkers” who are in the country right now to enroll in the program. Thus, many may be faced with an appalling choice: Face deportation or enter the H-2C program.

“As of right now, it’s unclear how many people who are currently in the US would qualify for the program, or how strict the program will be with respect to people’s immigration and criminal records,” Crowe told Truthout. “Most likely, the final version of the bill will outline a generic process that would later be interpreted.”

H-2A Worker Organizing Blossoms in 2017

The H-2C bill has serious implications for a rising farmworker movement that has begun to make inroads with H-2A workers. Along with FLOC’s ongoing work in North Carolina, Ohio and elsewhere, this year, Community to Community Development (C2C), a women-led group that works on farmworker, immigrant and climate justice issues in Washington State, helped 102 H-2A workers from Mexico go on strike following the death of a worker at a blueberry farm in August. Because of the lack of protections workers enjoy under the H-2A program, the farm owner was able to retaliate against the workers by threatening to send them back to Mexico and to revoke their work permits, which would bar them from participating in the H-2A program in the future.

H-2A apple pickers in Quincy, Washington, and organizers with Community to Community Development holding up the settlement agreement workers won after going on strike in October 2017. (Photo: Community to Community Development / Facebook)

Edgar Franks, an organizer with C2C, tells Truthout that after speaking with lawyers and exploring their options, the striking workers at the blueberry farm for the most part decided to go back home to Mexico. C2C and Familias Unidas por La Justicia, an independent farmworker union C2C helped form in 2013, have testified in the state capitol about the incident, and are calling on the governor to create a task force to investigate the H-2A program in the state.

Though results were mixed, the strike got national attention in Mexico. “We’re getting messages from everywhere,” Franks told Truthout.

Among those who reached out were a group of H-2A apple-pickers in Quincy, Washington, a small town on the state’s arid East Side. After reaching out to C2C, 17 workers on the apple orchard went on strike for six days in October. They agreed to go back to work after their employer agreed to rehire three workers who had been fired, allowed the workers to form a committee, paid for housing expenses and fired an abusive supervisor. The workers are now members of Familias Unidas por La Justicia.

The Quincy settlement, said Franks, “was one of the first times an employer reached an agreement directly with [H-2A] workers, because of a protest, because of worker organizers and without a union.” Franks says the employer signed the contract directly with the workers. H-2A workers in Kennewick, Washington, also “walked away from the fields weeks before harvest finished in late October,” according to The Spokesman-Review.

Also in October, seven H-2A tobacco farmworkers in Kentucky went on strike for almost a month, with the support of FLOC. They accused their employer of not paying the proper wages or travel and supply costs required under the current H-2A program. According to FLOC, the strike ended with workers being paid their stolen wages and returning home to Mexico.

“Much of the labor movement writes-off H-2A farmworkers as ‘unorganizable,'” said Franks. “But these are the conditions that farmworkers face. These are 21st century working conditions in the USA…. We see the H-2A program as a form of modern-day slavery.”

A section of Rep. Hank Johnson’s (D-Georgia) testimony about the proposed H-2C program is worth quoting in full:

“As far as the 10 percent incentive to leave — in other words we are going to withhold 10 percent not of your net but of your gross pay, and from that gross pay you are also going to deduct … sometimes housing, transportation, it can be food, it’s going to be health insurance. You are setting up a situation where at the end of the pay period, there’s not going to be any money owed to the worker. And in fact, the worker will owe to the company or to the [farming] association or the farmer — the worker will actually owe money. And so, with the requirement that that worker have to leave within 18 or 36 months, if their bill is not cleared up by that worker within that time, that worker could be prosecuted for theft of some type, and under the 13th Amendment where you can be penalized, you can’t be held in indentured servitude, but you certainly can be held to work off your debt. And so, this bill is opening up a drastic scenario of possibilities. I’m not saying that it will happen, but I am saying you are opening the door for bad things to happen to people who don’t have rights, who can’t go to court according to this legislation to sue, you have no voice, and they are in prime situation to be mistreated and abused. We should not be walking down this road in America in 2017.”

Some agricultural industry interests have critiqued the proposed H-2C program because they want the program to be bigger, and for it to be easier to sign up undocumented people who are already in the country. One thing is certain: As the crackdown on non-citizens continues, use of guest worker programs is exploding and organizers are gearing up for more fights in 2018.

Franks said the H-2C proposal would “damage the labor movement and human dignity. It’s like a slap in the face.” But it would not change his mentality. “These are the conditions that are happening, and we have to organize with the conditions and change them,” he said.