Each year, in an effort to alleviate labor shortages, the State Department permits over one hundred thousand low-skilled foreign workers to legally enter the United States for purposes of temporary employment. Workers come from poorer nations around the globe, enticed by the promise of high paying jobs and the chance to make an honest and comfortable living for themselves and their families. The majority of workers employed through the United States guest worker program are forced to take on crushing debt in the form of various point-of-hire fees.
Unfortunately, these fees, which almost always come out of the worker’s pocket, are rarely recoverable and create a system of involuntary servitude. This happens for several reasons, one being that under current United States law foreign workers often pay, at least initially, all inbound transportation and visa costs. The other major cause of this debt is the fact that employers often look to recruitment agencies to secure workers. Unscrupulous recruiters promise prospective workers high wages, overtime pay, and green cards. Believing they will make a lot of money, the workers are even more vulnerable to the recruiter’s demands for an additional recruitment fee.
Since World War II, foreign workers have been a driving force behind the United States economy. The United States, through a number of agreements and passage of the Immigration and Nationality Act, has created a massive government program aimed at protecting the economy by alleviating the ill effects of labor shortages. In doing so, Congress has gone to great lengths to ensure that United States business interests, as well as interests of the domestic workforce, are protected. With these important interests in mind, it is of no surprise that little thought has ever been given to the actual laborers.
Part I of this Note provides background on the United States guest worker program, particularly its historical purpose and the changes that have occurred over time. One major theme throughout this Note is the administratively created distinction between agricultural and non-agricultural workers and the problems that result therefrom. Part II examines two sharply contrasting circuit court cases: the first, an Eleventh Circuit opinion holding that point-of-hire fees, in the context of agricultural workers, are primarily for the benefit of the employer and thus reimbursable; the second, a recent Fifth Circuit decision holding that none of these fees are reimbursable for non-agricultural workers. Part III analyzes current United States law and its application in the wake of these two divergent opinions. This Part explains that an employee’s inbound transportation, visa, and recruitment fees are primarily for the benefit of the employer. These fees operate to drive an employee’s wages below the minimum wage requirement established by the Fair Labor Standards Act. Finally, Part IV addresses the future of the guest worker program and discusses policy alternatives aimed at preventing foreign workers from falling prey to unscrupulous recruiters and exorbitant debt.
Michael Prasad, IMMIGRATION AND LABOR LAW—WE NEED YOUR HELP! BUT IT’S GONNA COST YOU: ARRIAGA, CASTELLANOS-CONTRERAS, AND WHY POINT OF HIRE FEES SHOULD BE PAID BY THE EMPLOYER, 33 W. New Eng. L. Rev. 817 (2011), http://digitalcommons.law.wne.edu/lawreview/vol33/iss3/5