How Does Title 42 Affect Migrant Workers in California

During the COVID-19 pandemic, the Trump Administration began enforcing a little-used provision of US law, known as Title 42, to send people who crossed the southern US-Mexico border back to Mexico. President Biden extended the program until May 11, 2023. The end of this policy has left many unknowns in the world of immigration. How did Title 42 affect migrant workers in California? And how will the end of Title 42 affect migrant workers in California?

Title 42 has primarily affected the US-Mexico border, but the policy affected the labor pool, a change likely to continue. With decreased border crossings and labor shortages in key areas, many employers have turned to temporary work visas. 

A change in the labor pool may inspire employers to try to exploit employees. If your employer has mistreated you or someone you know, contact the Bibiyan Law Group, P.C. We focus exclusively on employment issues, especially unpaid wages for hourly or low-wage jobs. Let us fight to get you the compensation you already earned.

What Is Title 42?

Title 42 of the US Code governs public health. Section 265 authorizes the federal government to prevent individuals from entering the US if they present a “serious danger” of introducing a communicable disease. Between 2020 and 2023, Title 42 was used over 2.7 million times. In May 2023, a month after declaring the end of the COVID-19 pandemic, President Biden stopped relying on Title 42.

What Replaced Title 42?

Many have called the Biden Administration’s new rules more restrictive than Title 42. These rules have already been challenged in court. Under the new rules, asylum seekers must schedule an appointment through a cell phone app and wait outside the US. Those caught entering without using this system can be not only turned away but banned from requesting asylum in the US for five years. 

Who Is a “Migrant Worker”?

Although migrant workers are often farmworkers, there is no universal definition of a migrant worker. They typically travel away from home for work and return home when their work is done. Although that usually means traveling from one country to another, some definitions include people who travel more than 75 miles between jobs within their home country.

Without including temporary visa holders, approximately 88% of California’s farmworkers from 2015 to 2019 were born somewhere other than the US, with a majority from Mexico. Of those workers, only 49% had work authorization. 

Temporary Agricultural Workers 

Most migrant workers are temporary agricultural workers who do farm work. They usually hold H-2A visas. In 2022, California employed approximately 44,000 workers on H-2A visas.  

Temporary Non-Agricultural Workers

Sometimes overlooked, many workers travel away from their homes for non-agricultural work, often construction work. Temporary non-agricultural workers usually have H-2B visas. Only 66,000 H-2B visas are authorized per year nationwide.

Domestic Workers

Domestic migrant workers may be US Citizens, Green Card holders, asylum seekers, or undocumented immigrants. Domestic migrant workers reside in the US but travel to work sites where they live temporarily. 

Effects of Title 42 on California Migrant Workers

Title 42 affects California migrant workers in several ways, especially as it has ended and been replaced. Title 42 did not have the intended deterrent effect, and border crossings continued throughout its reign. As more people cross the border, the potential labor pool grows. As the labor pool grows, employers may view workers as disposable, leading to mistreatment. 

However, the Biden Administration’s new rules have decreased border crossings. Those rules may not remain in the face of legal challenges, but the changed flow of people into California in the wake of Title 42’s end will undoubtedly affect migrant workers.

H-2A and H-2B Programs

The modern US economy depends heavily on the labor of migrant workers. If fewer people can reach the US, the demand for migrant workers will increase. Under Title 42, more and more employers began turning to the H-2A and H-2B programs to recruit workers, a trend likely to accelerate under the new rules.

Pros of the Programs

The H-2A program requires workers to be paid at least $18.65 per hour in California in 2023. Employees under the H-2B program must be paid the prevailing wage for the job for the region, as determined by the Department of Labor. Domestic workers cannot be paid less than visa workers and must be offered the same benefits.

The law provides explicit protections for H-2A and H-2B visa holders. The Department of Labor regularly audits participants in both programs, banning companies with egregious violations from future participation.

Cons of the Programs

Despite the legal protections in place, employers frequently mistreat and underpay employees in the H-2A and H-2B programs. Many employers provide substandard living and working conditions and threaten workers who stand up for themselves with deportation. 

Working without Authorization

Working while undocumented may subject you to even greater abuse, especially when threats of deportation become more credible. Many are afraid of speaking up even in the face of outrageous abuses, but undocumented workers are still due compensation for their work. Our employment law attorneys can help you understand your options and what risks those options entail if you are undocumented and have been the victim of wage theft or other mistreatment. 

Contact the Bibiyan Law Group to Let Us Fight for You

If you are one of the California migrant workers affected by Title 42, contact the Bibiyan Law Group today. Whatever your immigration status, you deserve to be treated with dignity and respect and be fairly compensated for your work. Contact us today to learn how we can start fighting for you. Hablamos español. 

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David Bibiyan is a distinguished attorney at Tomorrow Law, renowned for his expertise in employment law. With a strong focus on representing employees in various workplace disputes, he has become a trusted advocate for those facing discrimination, harassment, wrongful termination, and wage and hour issues. Bibiyan’s approach is characterized by a deep understanding of both state and federal employment laws, ensuring that his clients receive knowledgeable and effective representation. His commitment to justice is evident in his dedication to each case, where he meticulously works to secure the best possible outcomes for his clients. Bibiyan’s reputation is built on a foundation of successful case resolutions, marked by his skillful negotiation and, when necessary, aggressive litigation strategies. His work at Tomorrow Law reflects a genuine passion for defending workers’ rights and promoting fair employment practices.

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