H-2B Visa Program:
Closed Civil Criminal Cases Illustrate Instances of H-2B Workers Being Targets of Fraud and Abuse
GAO-10-1053, Sep 30, 2010
The H-2B visa program assists U.S. employers anticipating a shortage of domestic nonagricultural workers by permitting them to hire nonimmigrant foreign workers temporarily. The program is overseen by several agencies, including the Department of Labor (Labor), the Department of Homeland Security's United States Citizenship and Immigration Services (USCIS), and the Department of State. Employers often hire labor recruiters or other intermediaries to assist with the process of obtaining labor certifications and finding foreign workers. GAO was asked to determine if there were examples of recruiters and employers engaging in illegal or fraudulent activity within the H-2B visa program. GAO reviewed recent closed civil and criminal court cases involving H-2B workers, obtained data from Labor and USCIS on H-2B visas issued in fiscal years 2008 and 2009 and in first 6 months of fiscal year 2010, and interviewed advocacy groups that represent H-2B workers in litigation. In addition, GAO made undercover calls and site visits to recruiters, posing as H-2B employers and foreign H-2B workers and asked a series of questions related to legal requirements of the program. GAO also visited several H-2B housing and work site locations. Case studies and results of tests and site visits cannot be projected to the entire population of H-2B employers and recruiters.
GAO reviewed 10 closed cases over the last 5 years that involved H-2B employers and recruiters that violated various labor laws or settled allegations of violations outside of court. These 10 cases involved diverse employers in different industries with employees in 29 states with violations in areas such as employers failing to pay promised wages, overtime, or both; employers charging H-2B workers exorbitant fees; and employers and recruiters submitting fraudulent documentation to government officials. For example, in one case H-2B workers became indebted to their employer through a series of arbitrary charges. The employer then forced workers to take second jobs at local fast food restaurants to pay these debts. GAO personnel found that most recruiters they called or visited posing as prospective H-2B employers and workers did not encourage our undercover agents to violate program rules. Of the 18 recruiters in multiple states we contacted, 15 appropriately did not offer any advice on violating H-2B program rules. However, during three calls, H-2B recruiters did provide suggestions on how to circumvent program rules, such as providing "good excuses" to help "weed out" prospective U.S. workers or recouping costs through "off-the-book" transactions to avoid restrictions on pay deductions. Additionally, GAO found that H-2B workers contacted during the site visits to their housing locations were generally pleased with their living and working conditions. However, at one location the H-2B workers were afraid to speak with outside individuals for fear of retaliation from their employer.