American Dreams, Trafficking Nightmares

Under the H-2 visa scheme, American employers rely on labor recruiters to venture abroad, find prospective employees, and commit them to an employment contract for seasonal or temporary work on American farms, construction sites, hotel staffs, and other businesses. Rogue recruiters, operating in foreign countries far from the view of their American employers or law enforcement, are in effect free to employ a variety of unscrupulous means for enticing and obtaining prospective recruits. They may lie about the nature of the work that awaits the recruits in the United States, charge them illegal fees that leave them in crushing debt, or confiscate their passports. Once the workers arrive to their labor sites, unethical employers can take advantage of their compromised status, conceivably through deliberate ignorance of their recruiter’s actions. This Article proposes amending the ambiguous knowledge threshold in the federal anti- trafficking statute in order to prevent employers from flouting liability for a fraudulent recruitment charge merely by asserting they knew nothing about their recruiter’s actions—a particularly cynical assertion given the common knowledge that these middlemen service a vulnerable population of impoverished migrant workers