Gabriella: How did you get started working in this area, focusing on both migrant and guest worker advocacy?
Cathleen: I founded Justice in Motion in 2005 and the focus was to address the issue of when migrants cross borders, they lose access to their rights. It is very difficult to access justice across borders. I have built a defender network and that is core to the model. There are now 40 human rights organizations in our network, which are located in Mexico and Central America. The network is currently in four countries in Central America, Guatemala, El Salvador, Honduras and Nicaragua in addition to Mexico. We started focusing exclusively on migrant labor rights across borders but we have expanded and we are about to expand again. We focus on migrant labor rights that are being exploited in either the United States or Canada and we also focus on what we’re calling “humanitarian immigration.” That is for migrants who are in the United States or Canada and are seeking to stay because they are fleeing violence or persecution or abandonment in their country of origin. They need evidence in their country of origin to be able to support their claim. We are about to launch a civil rights project, so that includes migrants who are picked up in an unlawful manner, perhaps detention conditions that are unlawful, or the causes of deportation that are civil rights violations. We would then help, as we do with the labor rights cases, to find the people in their countries of origin to be sure that they can pursue claims in the U.S. for justice. We don’t have offices in the countries of origin, the model really relies on a diverse array of human rights organizations or individual practitioners that are located in key places in high migrant sending zones and we partner with them. They are not our employees, but they collaborate in our defender network to execute that legal work. We do other work to, but the core is our legal action. We do a lot of policy work around non-immigrant visas, but the defender network is really engaged in the legal action or policies in their countries of origin around the nonimmigrant visas, recruitment issues as an example.
Gabriella: You said you do your work in Central America, but are you expanding geographically?
Cathleen: We started in Guatemala, then we expanded to Southern Mexico and then further down. In terms of geographic expansion, we are still trying to have full coverage in Mexico and Central America where we currently are. For example, we only cover half of Mexico, so for us, expansion is really still further in the countries we are in. We only have two defenders in Honduras, we really need more there. So right now, the expansion within the next 3-5 years is only where we currently operate.
Gabriella: We were hoping to get your input on recent developments in the political atmosphere, including how the renegotiation of NAFTA may impact migrant and guest workers?
Cathleen: I don't think we saw much improvement in worker’s rights through NAFTA. I doubt in the current political environment we could see an increase in worker protection.
Gabriella: How has the increase in H2 visas affected your work?
Cathleen: The current administration has had a huge impact on our work. The general anti-immigrant attitude has fostered broad abuse of migrant rights. If you look at labor rights protection in general, there has been an increase in labor rights violations because employers feel emboldened to mistreat workers because they know there will be a lack of response from the government agencies who are getting messages not to enforce the law as vibrantly as Obama tried to do. That is the general overview of labor rights enforcement. There is also the bizarre contradictory attitude toward non-immigrant visas. He has this aggressive language towards U.S. workers not getting access to jobs and he presents the possibility or threat of eliminating or doing major changes to different visa categories, although he hasn’t done anything yet, but he certainly talks about it. (For example, the H1 visa, the summer travel under the J1 visas.)
He has talked about U.S. workers getting hurt, however, it is inconsistent and not applied evenly across visa categories. For the visa categories that he uses, he doesn't talk about threat to U.S. workers. In fact, he talks about increasing access to foreign workers in those visa categories, which is H-2A and H-2B. It is consistently inconsistent. It is consistent with his inconsistent stance on how he is dividing the visas into two different categories. The categories that he thinks are fine, where U.S. workers ‘don’t need access to these jobs,’ are coincidentally the ones he uses personally for his business. He talks about streamlining and that is where we have seen an increase in the H-2B numbers. So, we have this anti-immigrant general message out there.
There hasn’t been a decrease in actual protections yet. That is forthcoming, but that is going to happen. At the same time, with the budget, we are going to see a real weakening of legal services. That is very important to talk about because that means we will see a decrease in lawyers to deal with the increased violations. The Legal Services Corporation (LSC) program, a federally funded legal service program for the poor, don't serve many categories. They don’t serve undocumented workers. They only serve H-2A and some H-2B. Many visa workers aren't even covered by that. That being said, the LSC does cover some very important categories, like if you're a victim of trafficking and on a U visa. As you can see, there is some flexibility there to get more workers represented. The point is, they are on the target to get major funding cuts and what that means is there will be even fewer lawyers to deal with the plethora of problems that are occurring.
Gabriella: While it is regulated strictly by the government in some ways, like wages, have you found any human trafficking or forced labor present in guest work?
Cathleen: Yes, but wages are only fixed for certain visa categories. Just H-2B and H-2A. For example, J1 visas just receive minimum wage, or less. The point of the fixed wages on H2s are about U.S. workers. In theory, they can’t just have really low wages so that U.S. workers won’t work for you. You have to offer a wage that a U.S. worker would get normally for that job in your area. That is really just designed so as not to undercut U.S. workers. The problem is how they calculate the wages. Sometimes they use wage surveys, so if the employers are smart, they may just report wages lower than what they actually pay. When the ruling comes out on the prevailing wages, it looks like the wages are lower. It’s all about U.S. workers, not about how these wages are going to prevent forced labor.
Gabriella: Within that structure, talking about H2 visas, have you defended migrants who have been cheated of their wages?
Cathleen: It is complicated, because when you are looking at the litigation, some people are trying to get into federal courts, so they are actually arguing minimum wage violations. The violations are so gross they are actually rising to the level of minimum wage violations. (Prevailing wage is much higher than a minimum wage.) Depending on your strategy it is very hard, it is more of a contract issue. Which makes it even more complicated. The wages are promised between the employer and the government. The employer, in the paperwork, is telling the U.S. government that they are going to pay those wages. There is some bad case law out there that say that is not a contract between the worker and the employer, so the worker doesn’t have any right to ask for the prevailing wage. Although, the H-2A has now been established as a contract. A lot of these cases are minimum wage cases, which is terrible since they should be earning much more.
Gabriella: If you could pinpoint the biggest issue with the U.S. guest worker system what would it be? I felt that at the colloquium it was a bit inconclusive since there were so many problems, but I am curious to hear what you find as the most detrimental aspect with the system in relation to your work?
Cathleen: I would have answered this one way, but the Canadians convinced me otherwise. Before I would have said mobility, when you ask people they generally say portability between visas. But the Canadians see problems even with that. I think the biggest problem is ensuring that what employers promise the U.S. government, are the actual terms and conditions that the workers receive when they come.
Gabriella: With regard to the DACA decision that just came out, is your organization planning on doing anything surrounding that?
Cathleeb: We have not been involved with legalization, because there are a lot of org that do that kind of work. That is why we focus a lot more on the cross-border piece and as of now, there is no cross border piece with the DACA kids, so that’s why we haven't been involved. However, if they get swept up and deported and their civil rights violated, that is how we would become involved.
Gabriella: Thank you very much for speaking with me.