By: Alice Browning
H-2A[1] workers do not have the ability to peaceable assembly as protected by the First Amendment because of their vulnerability to employer retaliation, lack of protection against deportation, and general lack of protection against labor exploitation.[2] Nonimmigrant agricultural workers have First Amendment Rights because they are in the United States and protected by the U.S. Constitution, but the H-2A visa category essentially prohibits peaceable assembly due to total employer control.[3] This is a violation of nonimmigrant agricultural workers’ constitutional rights.
Congress created the low-skilled temporary worker programs to supplement U.S. labor shortages.[4] The H-2A program is for agricultural workers in all types of agricultural labor, including tobacco farms, onion and sweet potato farms, fruit picking, shepherding, and more. Although the H-2A visa regulations guarantee workers certain labor standards under federal law and DOL regulations, H-2A workers’ access to these guarantees are severely limited because of pervasive employer control. [5] If for whatever reason the employer decides to terminate the H-2A worker’s employment, the worker is deported.[6] Even though the right of H-2A workers to peaceably assemble for the purpose of complaining, advocating, or organizing is protected on paper it is not enforced in reality.[7] Due to employer retaliation and blacklisting an H-2A worker is effectively barred from bringing a complaint or instituted a proceeding against the employer.[8]
It is not disputed whether nonimmigrant temporary workers have constitutional rights. In Bridges v. Wixon, the Supreme Court decided that all aliens, not just permanent resident aliens, have First Amendments rights under the United States Constitution, specifically the right to freedom of speech and of press in the United States.[9] Furthermore, Kwong Hai Chew v. Colding held that once an alien lawfully enters and resides in the United States he or she is invested with the rights guaranteed by the Constitution even if that alien is returning from a trip abroad.[10] Furthermore, Yick Wo v. Hopkins made the distinction between “citizen” and “person.”[11] A noncitizen should enjoy the same set of laws and protections as U.S. citizens because the United States Constitution refers to persons not citizens.[12] When it comes to fundamental freedoms protected by the U.S. Constitution, the Supreme Court decided that the First Amendment applies to people not just citizens.
The H-2A visa category violates H-2A workers’ First Amendment right to peaceable assembly because it effectively allows employers full control over the H-2A workers’ freedom of movement and association. When H-2A workers’ rights to organize and seek fair labor standards are unprotected from employer retaliation and blacklisting, then their right to peaceable assembly is inaccessible.[13]
[1] See 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (2014) (stating an alien comes to the United States to work in the agricultural sector).
[2] Compare U.S. Const. amend. I (stating that Congress shall never make a law abridging the people’s right to peaceably assemble), with 29 U.S.C. § 1802(8)(B)(ii) (excluding H-2A workers); 29 U.S.C. § 152(3) (stating that agricultural workers are not protected); 29 U.S.C. § 213(a)(6) (stating that agricultural workers are not included); and Nieto-Santos v. Fletcher Farms, 743 F.2d 638, 641 (9th Cir. 1984); Lopez v. Arrowhead Ranches, 523 F.2d 924, 924-26 (9th Cir. 1975); and Chavez v. Freshpict Foods, Inc., 456 F.2d 890, 894-95 (10th Cir. 1972) (explaining that courts have declined implied right of action).
[3] See generally Bridges v. Wixon, 326 U.S. 135, 148 (1945).
[4] See H.R. REP. NO. 99-682, at 50 (1986) (starting with a single, formalized temporary worker program).
[5] See 20 C.F.R. § 655.122 (2010) (guaranteeing H-A2 workers labor standards such as minimum wage, standardized housing and workers’ compensation); 8 U.S.C. § 1188(d)(2) (explaining that the overseeing association of the temporary worker may be the sole employer); The Southern Poverty Law Center, Close To Slavery: Guestworker Programs in the United States 1-2 (2007) [hereinafter SPLC Report] (noting temporary workers are bound to H-2A employers who bring them to the United States).
[6] See Temporary Agricultural Work Visa Programs: Hearing Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 105th Cong. 53 (1997) [hereinafter Hearing] (noting that once employment is terminated temporary workers no longer have lawful status in the United States).
[7] See 20 C.F.R. § 655.135(h) (2017) (requiring H-2A employer assurance not to intimidate, threaten, restrain, coerce, blacklist, discharge or in any manner discriminate against H-2A workers).
[8] Compare 20 C.F.R. § 655.135(h) (2017) (explaining all of the protections afforded an H-2A worker exercising their rights) and SPLC Report, supra note 5, at 16 (describing fear of retaliation and blacklisting as “widespread” and “constant” among H-2A workers).
[9] See Bridges v. Wixon, 326 U.S. 135, 148 (1945) (clarifying that although Bridges, an alien, faced deportation due to alleged involvement in the Communist Party the Court decided that his affiliation was insufficient for deportation, and it was not until the passage of the Alien Registration Act that Bridges was deported).
[10] See Kwong Hai Chew v. Colding, 344 U.S. 590, 592 (1982) (involving a seaman, lawful permanent resident, returning from a voyage who was detained from reentering the U.S. without a hearing).
[11] See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (clarifying that the Fourteenth Amendment does not exclusively apply to citizens but to any person within the territorial jurisdiction of the United States).
[12] See id. (emphasizing that “persons” included aliens while “citizens” did not).
[13] Compare U.S. Const. amend. I (stating that Congress shall never make a law abridging the people’s right to peaceably assemble), with 29 U.S.C. § 1802(8)(B)(ii) (excluding H-2A workers); 29 U.S.C. § 152(3) (stating that agricultural workers are not protected); 29 U.S.C. § 213(a)(6) (stating that agricultural workers are not included); and Nieto-Santos v. Fletcher Farms, 743 F.2d 638, 641 (9th Cir. 1984); Lopez v. Arrowhead Ranches, 523 F.2d 924, 924-26 (9th Cir. 1975); and Chavez v. Freshpict Foods, Inc., 456 F.2d 890, 894-95 (10th Cir. 1972)) (explaining courts have declined implied right of action).