Regulating the Human Supply Chain

I. INTRODUCTIONOver the past decade, the United States has experienced a 65% decline in undocumented immigration.1 While politicians largely ignore this change, firms that have relied on local undocumented workers as a low-wage labor force feel it acutely. Such companies have increasingly applied to sponsor socalled "guest workers" to fill low-wage jobs. In 2015, the number of temporary migrant workers entering the United States on such visas was nearly double that of undocumented arrivals-the inverse of just ten years earlier.2U.S. employers' shiftto migrant worker visas has given a newly prominent place to intermediaries abroad in the country's low-wage work structures. In moving toward greater reliance on legal temporary migrants as a low-wage labor force, the United States is joining a trend already dominant around much of the globe. Almost all low-wage temporary visa programs worldwide, including in the United States, require the employers to hire the worker while she is still in her home country, which makes an intermediary a practical necessity if the employer does not plan to travel there to contract workers.3 Recent estimates put the number of low-wage legal temporary migrant workers in the United States recruited via intermediaries at 80% of the total or higher,4 on par with figures in other migration corridors around the world.5 By contrast, U.S. firms rarely use recruitment entities located in other countries when hiring undocumented immigrants. Instead, they tend to hire among workers already in the country, using informal networks and word of mouth.6This growing reliance on global labor intermediaries7 to obtain workers for low-paying jobs in the United States is deeply troubling. Around the world, the costs of temporary-labor migration are very high relative to the capital that most migrants have saved or can access through formal channels.8 Legal migration expenses usually include the price of the visa itself, and of travel to the destination country.9 These costs are compounded by the rent-seeking10 behavior of recruiters, who routinely charge high and often illegal fees for their services.11 To shoulder these expenses, migrants often resort to informal lenders charging usurious interest rates.12 Once they arrive at their destination and begin working, they must pay offthe resulting load of highinterest debt before they can begin sending money home for the purposes that led them to migrate in the first place: supporting those leftbehind and pursuing longer-term education, business, or home-ownership goals.13 In the United States, as in most destination countries, a low-wage migrant's visa is tied to her sponsoring employer, and ends when the job does.14 This means that no matter how dangerous or low-paid a migrant's work turns out to be, she will be very reluctant to protest violations of her rights, or even to reveal them to advocates-much less government agencies-lest she be sent home.15This, in turn, reduces the enforceability of workplace laws, and undercuts conditions for local workers.16 As a whole, this process shifts the costs of matching global labor with capital from employers onto migrants.17 Firms that employ recruited migrants receive a labor force far cheaper than the law purports to allow.18 In most countries, the firm benefits from this subordination of migrants without any accountability, because it is insulated from liability for the actions of its intermediaries that perpetuate it.19 This Article argues that these harms to migrant workers are not generated by anomalous bad actors, but instead are structural. They are the product of the global market for labor under current economic conditions, laws, and enforcement levels. Bad actors exist among labor recruiters, of course, as the copious evidence on fraud, threats, and violence in the recruitment industry around the world illustrates.20 But even if the worst actors were eliminated, most transnational migrants would still be paying amounts that require them to incur high-interest debt, both because of the cost of the visa itself, set by the destination country, and because functionally unregulated labor recruiters are able to charge fees for access to a scarce and desirable low-wage job abroad. …