Between 2012 and 2020, migrant workers from Mexico were recruited by companies in Illinois to construct hog and poultry enclosures under the H-2A temporary agricultural program. They came to the U.S. under the promise of well-paid jobs, but were instead forced to work across the country for hundreds of hours without pay.
If they complained, they were threatened with deportation.
That’s according to a lawsuit filed in the U.S. Bankruptcy Court for the Northern District of Illinois on Aug. 10 by Legal Aid Chicago, Jordan & Zito LLC and Gair Eberhard Nelson Dedinas Ltd. on behalf of 24 agricultural construction workers.
The H-2A program provides scaffolding for the agricultural system, allowing farms to bring in enough labor to pick fruits and vegetables Americans rely on. But many workers have been trafficked by employers using the program, said experts and activists who fear the COVID-19 pandemic has allowed the situation to grow.
The federal complaint accuses Mauricio Luna — who allegedly did business under the names ML Farm Systems, Alpha Agricultural Builders and Spartan Agricultural Builders — of human trafficking and forced labor after allegedly inducing the workers to travel to the U.S. to work under false promises, coercion, intimidation and threats, which caused them to work without pay and in fear of harm.
“Our clients report that they were chronically underpaid, worked excessive hours under difficult and dangerous conditions, and were threatened when they protested,” said Mariyam Hussain, supervisory attorney of Legal Aid Chicago’s migrant farmworker project, in a statement. “They are entitled to be paid for the hours they worked, and remedied for any systemic abuse of the agricultural worker program.”
Luna’s lawyer could not be reached for comment.
Since the alleged events described in the lawsuit, the coronavirus pandemic has exposed flaws in the H-2A program, according to Polaris, an organization that works to erradicate human trafficking. During a six-month period of the pandemic, according to a Polaris analysis, the number of likely labor trafficking survivors who held H-2A visas increased by more than 70%.
The analysis by Polaris found possible decreases in reports of labor trafficking from major industries with one exception — agriculture.
“It’s hard to point out a single reason why,” said Rafael Flores, Polaris’ bilingual communications director. “But from our analysis, it’s clear that the agriculture industry was one of the sectors in our economy that didn’t stop during the pandemic.”
Polaris analyzed calls to the U.S. National Human Trafficking Hotline from April 1, 2019 to Sept. 30, 2020, which were divided into two “pre-shelter-in-place” periods and one six-month “post-shelter-in-place” period.
It found that the daily number of labor trafficking and exploitation incidents that had at least one victim with an H-2A visa doubled for the six-month period during the pandemic, from April 1 to Sept. 30, 2020.
Language barriers, lack of community ties and economic precarity contribute to workers’ vulnerability to exploitation and abuse, Flores said.
Under federal law, labor trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.”
Labor trafficking occurs across industries, but it is especially prevalent in agriculture. Between 2015 and 2019, Polaris found that about 87% of the more than 3,600 human trafficking survivors who were legally working in the U.S. held H-2A and H-2B visas. The organization reported 78 potential human trafficking survivors with H-2A visas in Illinois between Jan. 2015 and Dec. 2020.
In Illinois, the use of the program has increased in the past years, from 588 workers certified to work in the state in 2010 to 2,965 in 2020. Across the country, according to the U.S. Department of Agriculture, the number of certified H-2A visas increased more than fivefold between 2005 and 2020, from around 48,000 to over 275,000.
The H-2A program allows U.S. employers who anticipate a shortage of domestic laborers to hire nonimmigrant foreign workers to perform temporary or seasonal agricultural work. H-2A visa holders must be given copies of their contract and be paid at least twice per month, according to the U.S. Department of Labor. Employers must provide housing, and provide or pay for inbound transportation and daily meals or reimburse workers.
Workers who apply for the H-2A visa with the U.S. Department of State go through an interview process in which they are given information on their rights, but during the pandemic, the interviews were waived, Flores said.
“There was an interview that was done in the consulates, but because of the pandemic, the consulates closed and worked much slower, and that interview was eliminated,” Flores said. “We don’t know how this information gets to workers or if the information reached workers at all.”
The dependence on their employers is a major factor that puts workers with H-2A visas at risk of labor trafficking. Employers sometimes impose illicit recruiting fees and threaten workers with deportation and blacklisting from future jobs in the country.
“Polaris advocates to eliminate that tie that exists between an employer and an employee,” Flores said. “If these people stop working for (the employer), they basically lose their legal status to work in the United States, and that creates an imbalance of power.”
A tactic of force some traffickers use against victims is denying or limiting access to medical care. During the pandemic, Polaris reported that 34% of H-2A workers who called the hotline said they were denied medical services despite being considered essential workers.
Alexandra Sossa, executive director of the Farmworker and Landscaper Advocacy Project, said many workers weren’t allowed to keep distance between them and their coworkers, and they weren’t provided adequate protection such as face masks. She said abuses against H-2A workers have increased during the pandemic.
“It took a pandemic to see the importance of workers who come with the H-2A visa,” Sossa said. “Without them, there’s no one to cultivate the land, harvest vegetables, fruits.”
Some red flags that could indicate a worker with an H-2A visa may be a victim of human trafficking include paying a recruitment fee, having their passports taken by their employers and being made to work to pay a debt, said Micaela Cayton Garrido, outreach coordinator of Legal Aid Society of Metropolitan Family Services in Chicago.
Cayton Garrido said that, in the early stages of the pandemic, it was harder to determine whether workers were being trafficked because of shelter-in-place orders. Illinois Governor J.B. Pritzker issued a shelter-in-place order in March 2020 in response to the early coronavirus outbreak.
“There have been some reports of some farm workers who were not allowed anymore to go to the laundromat or were not allowed anymore to go to the grocery because of infection concerns,” Cayton Garrido said. “That's where it gets a little tricky with COVID: Us trying to figure out, OK, how can we prove that it was at the level of being really unreasonable, and that the recruiter or the employer was actually committing acts and force against these workers.”
Now, with the vaccine rollout, Cayton Garrido said, severe restrictions around the farmworkers’ freedom of movement like those put in place last year could also be an indicator of human trafficking.
Labor trafficking cases can be hard to prosecute compared to sex trafficking crimes because prosecuters must prove that the trafficker forced or defrauded the person to work. In sex trafficking cases, any person under the age of 18 is considered a victim, wheras in labor trafficking cases, there is no age requirement. Many survivors are also reluctant to come forward over fear of repercussions.
“Proving the crime of labor trafficking can get a little more demanding,” said Cayton Garrido, noting that many people don’t report because they fear losing their job. “I've heard of stories where someone will say, ‘I'll just keep working because they promised that they'd pay me the next month.’ And seven months later, they still haven't been paid or money is still owed to them.”
Even before the pandemic, H-2A workers faced hurdles to access assistance. Lauren Dana, staff attorney at Legal Aid Chicago, said that the same factors that make workers vulnerable to exploitation — living in isolated areas and not having ties to the community — make reaching out for help difficult. The relationship between employers and workers with H-2A also poses a challenge for those who want to seek help.
“If they're being housed by their employer, if their employers are in charge of their transportation, their day to day mobility and time revolves around their employer,” Dana said. “The power is really centralized with the employer.”
For Dana, the pandemic has exacerbated issues for workers with H-2A visas, particularly the power imbalance between them and their employers, but they’re not new. Workers and labor advocates have pointed out issues with the program long before the onset of the pandemic.
“Farm workers took such a central role in the pandemic in keeping things going and keeping food on our tables,” Dana said. “Some of the issues that they face came to the forefront for the first time, but really they're not new issues as a result of the pandemic.”
Amanda Perez Pintado is a corps member with Report for America, a national service program that places journalists into local newsrooms.