Written by Andrea Solis Canto, 2024 Legal Intern
Allegations of mistreatment of high-skilled Mexican workers have sparked several important class action lawsuits against large automotive and logistics companies located in the United States. These companies are facing legal challenges for labor abuse, fraud, and exploitation through the TN visa program—a program that lacks oversight and has in some cases fostered predatory employment practices targeting high-skilled Mexican migrant workers.
What is the TN visa program?
The TN nonimmigrant classification was created under the former North American Free Trade Agreement (replaced by the U.S.-Mexico-Canada Free Trade Agreement) for Mexican and Canadian citizens to temporarily work in the U.S. in limited professional occupations. Workers must qualify for specific professions such as engineers, lawyers, and veterinarians and, with certain exceptions for Canadian citizens, have a prearranged job offer with a U.S. employer.
The TN application process for Mexican citizens differs from the requirements for Canadian citizens. Mexican workers must apply for a TN visa at a U.S. consulate with proof of citizenship, an employment letter or contract from a future U.S. employer, and evidence of the education and credentials required for the job. If approved, the worker must present at a port of entry where a U.S. Customs and Border Protection (CBP) officer decides whether to admit the worker and for what time period, up to three years. Unlike several other temporary work visas, Mexican TN applicants interact only with two agencies: the Department of State and CBP. The Department of Labor (DOL) is not involved in the administration or regulation of the TN visa program.
The DOL has a role in regulating and enforcing labor conditions and wages in the H-1B and H-2 visa programs. For an H-1B visa classification, a U.S. employer must receive a certified labor condition application (LCA) from the DOL, which the employer must submit to U.S. Citizenship and Immigration Services. The U.S. employer attests in the LCA that it will pay the required wage and maintain fair working conditions.
Non-compliance can result in fines and other sanctions. The H-2A and H-2B visa programs require U.S. employers to obtain a temporary labor certification from the DOL, which grants the DOL oversight of employers’ compliance with provisions about wages, working conditions, and recruitment practices. Additionally, employers of H-1B workers must pay most fees related to obtaining the H-1B classification. Employers of H-2A and H-2B workers are required to pay or reimburse workers for any visa processing fees. In contrast, the TN visa program lacks DOL oversight, and there is no obligation for employers to pay any associated fees.
Immigrants play an integral role in the U.S. economy as workers, taxpayers, and consumers. The TN category has allowed employers to address shortages of certain professionals in critical sectors like healthcare and agriculture by hiring highly skilled Mexican and Canadian workers, further supporting the U.S. economy.
However, the TN visa program’s shortcomings in oversight, transparency, and protections have left some workers vulnerable to exploitation. Since 2010, the number of TN visas issued has steadily grown, reaching almost 35,000 in 2023. Despite the increase in TN visas, the program still lacks essential safeguards, leaving some migrant workers at risk of serious labor abuses and burdened with covering all related expenses, at times under false pretenses.
What abuses have some migrant workers faced?
In June 2024, Mexican TN workers filed a class action lawsuit in federal district court in Atlanta, Georgia, against logistics companies within the Hyundai Kia Automotive Group. The lawsuit alleges fraud, discrimination, breach of contract, racketeering, and wage violations. The suit claims that the plaintiffs “were exploited as part of an illegal scheme for cheap labor” in warehouses across the Southeast.
According to the lawsuit, the companies used false promises of highly paid skilled engineering jobs to recruit the plaintiffs through the TN visa program. Upon their arrival in the U.S., the workers allege they were instead forced to work in warehouses and on automotive assembly lines, facing discrimination and wage violations. In addition to having to pay significant visa fees, travel expenses for consular processing and relocation to the U.S., the workers alleged they had to pay for overcrowded employer-provided housing and transportation.
This is not the first instance of TN workers alleging abuse. In March 2022, a different class action lawsuit was filed in federal court against a labor recruiter who used the TN program to hire dozens of Mexican engineers, allegedly forcing them to perform manual assembly line labor in Alabama under horrendous conditions. This case was settled and dismissed in 2023.
In October 2023, another class action lawsuit was filed by high-skilled Mexican workers in federal court in Georgia alleging they were lured to come to the U.S. through the TN visa program as engineers for an auto parts supplier for Kia and Hyundai. The workers claimed when they arrived in the U.S., they did not work as engineers but were instead forced to do manual assembly labor for long hours and lower pay than their American coworkers. The workers also claimed they were threatened by their employer if they raised concerns about the working conditions. On July 19, 2024, although the car parts manufacturers and recruiting agencies deny the workers’ allegations, the parties tentatively settled the case, subject to court approval, for $1.2 million.
How can these issues be addressed?
Centro de los Derechos del Migrante has brought attention to the labor violations faced by some migrant workers in the TN visa program. The organization has proposed numerous recommendations for reform, including greater transparency in the recruitment and hiring process, prohibiting recruitment and contract breach fees, developing regulations for employer vetting and certification, and granting workers more control over their visas.
By abusing the program, unscrupulous employers not only exploit migrant workers but also undermine those employers who are committed to following the law, creating an unlevel playing field.
The recent class action lawsuits aim to address labor abuses and injustices by holding U.S. employers accountable for violating immigration and labor laws and pursuing damages for the significant economic harm suffered by the plaintiffs. These lawsuits are also part of a larger effort to hold large corporations responsible for alleged violations committed by their contractors, recruiters, and other intermediaries. Together, these efforts represent a crucial step toward justice and accountability for vulnerable migrant workers.
FILED UNDER: Abuse
