Recently the United States Department of Homeland Security (DHS) added the Philippines to the list of countries that are banned from participation in the H-2 temporary worker visa program. The ban took effect on January 19, 2019, and will be in place for at least a year as the list is renewed annually by the DHS. Under the ban, workers from the Philippines will not be eligible to work under the H-2 category, which is for temporary or seasonal work. Filipino workers have always been able to get employment in the U.S. under this program, particularly under the H-2B subcategory to work in hotels or construction projects. (H-2A is used to employ seasonal agricultural workers.)
First and foremost, the Pilipino Workers Center (PWC) would like to voice its deep concern to the hundreds, if not thousands of Filipino workers who are going to be adversely affected by this ban. This recent decision is bad news for Filipino workers who are currently in the U.S. under the H-2 status. The ban would not allow these Filipino workers from extending and changing their H-2 status. H-2 visas are usually one year in duration, which can be extended annually up to three years.
Common among workers recruited from the Philippines is that they have been charged exorbitant placement fees and processing fees by labor contractors. They left the Philippines deep in debt, thinking that they will able to work for three years in the U.S., and be able to earn enough to repay all their debts and have something left for their respective families. Now, many of them will be forced to make the hard decision of either returning home to face the prospect of poverty, or continue working in the U.S., consequently overstaying their authorized stay.
Further, many more Filipino workers who are still in the Philippines and in the process of applying for H-2 visas will be affected as well. Those who will be most adversely affected are the ones who already incurred debts to pay placement fees and other processing charges to labor recruiters. PWC is concerned that labor recruiters would find a way not to refund payments from these workers.
In publishing its recent decision, the DHS cited two grounds. According to the DHS “estimate,” in the Fiscal Year 2017, nearly 40% of H-2B workers from the Philippines overstayed their visas. Moreover, DHS cited that in the Fiscal Years 2014 to 2016, approximately 60% of victims of trafficking from the Philippines entered the US with an H-2B visa. DHS, in its decision, underscores that not only are H-2B workers overstaying their visas at a high rate, but also that the H-2 visa has become a tool utilized by labor traffickers.
PWC recognizes that the aim of DHS is to maintain the integrity of the H-2 visa program. However, it is unfortunate that those who will suffer most from the ban are workers who simply want to provide a better future for themselves and their families. Now, PWC believes that the conclusions derived by the DHS from the statistical data it presented is not complete. It is likely that the first and second grounds that DHS used to justify its ban are closely related. Granting that those statistics are correct, what is apparent is that many of these Filipino workers were victims of labor trafficking schemes characterized by fraud, misrepresentation, and exorbitant fees; and that could be the reason that drives the overstay numbers upwards. Many of these workers opted to overstay their visa and continue to work so they can pay debts and interests they incurred as a result of being trafficked; and perhaps, to seek justice against their labor traffickers.
Moreover, PWC does not agree that the H-2B ban is a good response to the issue at hand, particularly to the issue of labor trafficking. With this ban, labor traffickers will simply shift to other forms of visa categories and continue to victimize Filipino workers. PWC believes that this recent development should be an eye-opener to both the U.S. and Philippine governments. In light of this ban, PWC would like to highlight the issue of trafficking of workers in the U.S. that continue to victimize Filipino workers every year.
Instead of focusing on who is to blame on the recent inclusion of the Philippines on the list of banned countries under the H-2 visa program, PWC calls for a serious review and concrete actions to address the issue of labor trafficking of Filipino workers. PWC calls on the Philippine government to address the following themes or topics related to the issue of labor trafficking: transparency and accountability of labor recruiters; educating Filipino workers about work opportunities abroad, about labor trafficking, and how to exercise their rights; the regulation and enforcement of laws on labor recruitment, particularly on placement fees and charges; and other relevant topics. We propose that there should be a mechanism in place or a formation of a task force that should involve non-government entities and advocacy groups like PWC who are working on issues affecting Filipino nationals in the United States.
Prepared by Atty. Ian M. Seruelo, PWC Legal Consultant
(For more information and for media inquiry, please contact Lolita Lledo, PWC Associate Director at (213) 250-4353 or [email protected]; OR, Ian M. Seruelo, Esq., PWC Legal Consultant at 281-455-2462 or [email protected])