Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The current administration and multiple members of Congress seek to grant protections to H-2B non-agricultural temporary workers who are employed in the United States to fill temporary labor shortages in the U.S. market. Multiple bills have been introduced in both the Senate and House of Representatives calling for protection against exploitation and abuse, including for employer violations of wage and hour laws and retaliation.
The H-2B program allows U.S. employers to hire foreign workers for temporary and seasonal jobs and is used to fill labor shortages in seasonal, peak load, intermittent and one-time occurrence situations for certain specified industries. Once sponsored and after entry into the United States, these workers may be vulnerable to wage and hour and other labor and employment law violations committed by their employers.
Among the proposed legislation on this topic, a recent bipartisan bill introduced by Senator Lindsey Graham (R-SC) and co-sponsored by Sen. Alex Padilla (D-CA) would amend the Immigration and Nationality Act by providing broad victim protections for H-2B and other foreign workers who suffer mental, physical, and emotional abuse related to labor and employment violations resulting in a workplace claim, and who would suffer extreme hardship upon removal. The bill includes provisions to provide temporary protection to injured workers and victims by permitting them to remain in the United States and apply for work authorization if they are applicants having filed a T or U visa application, or are witnesses to a workplace claim or to a civil claim arising from criminal activity and have been helpful to authorities in an investigation. This is distinguished from the current application related to criminal activity. Also included in the bill are provisions for eligibility for Adjustment of Status after prosecution regarding a workplace claim.
The Padilla/Graham bill is just one of many efforts to provide protection to these workers. The Biden administration in October 2023 released a Report of the H-2B Worker Protection Taskforce, which includes steps four federal agencies – the Department of Homeland Security (DHS), Department of Labor (DOL), Department of State (DOS) as well as the U.S. Agency for International Development (USAID) – can take to strengthen protections for H-2B temporary workers.
We will continue to monitor these legislative and regulatory developments.
