Minnesota Farm and Its Owner to Pay $576,707 for Violations of H-2A Visa Program

Thursday, September 1, 2016
Seventy-six farmworkers from the Dominican Republic were victims of a scheme in which a Minnesota farm demanded a kick back from a portion of their wages and the entire cost of the airfare to travel to the farm from 2010 to 2015 until a U.S. Department of Labor Wage and Hour Division investigation, and a joint effort with the U.S. Department of State’s Bureau of Diplomatic Security and the U.S. Department of Justice ended it.

As a result, the division found the workers are owed $576,707 in back wages and other restitution by their employer, Svihel Vegetable Farm and owner, John Svihel, who violated provisions of the H-2A federal visa program that allows employers to hire temporary foreign labor for agricultural work.

The joint effort found the workers’ recruitment payments, and wage and airfare kickbacks were criminal violations of the federal visa program. The programs require employers to pay for workers’ housing and travel expenses to and from their home country, and forbid employers from collecting recruitment fees or wage kickbacks.

The investigation revealed Svihel hired the workers through Labor Listo, an unregistered business operated by Sandra Lee Bart of Seven Hills, Ohio, and her employee, Wilian Socrate Cabrera. From 2008 to 2015, Bart and Cabrera recruited workers in his Dominican hometown of Navarrete for jobs under the visa program.

Cabrera charged the workers a one-time recruitment fee of between $420 and $2,385, as well as an annual fee of $374, which he split with Bart. If workers refused to pay the fees they were told they would not be allowed to return to work for the next growing season. Bart and Cabrera demanded and collected reimbursement for the full cost of workers’ airfare. In addition, Svihel kept a percentage of the workers’ wages – totaling about $90,000 – that he spent on personal travel and leisure.

During its investigation, the division determined Svihel committed violations of H2A wage provisions and, in some cases, overtime rules governing 36 other workers from Mexico and Eastern Europe. Svihel owes a total of $199,218 to these workers, employed under H2A and J1 visas.

On June 16, 2016, Svihel pled guilty to conspiracy to commit fraud in foreign labor contracting. He employed H-2A workers recruited by Labor Listo from 2010 to 2015 at his Foley farm. As part of his plea agreement, he signed a supplemental compliance monitoring agreement that requires him to hire an expert agricultural monitor at his own expense. This monitor will visit the farm twice during the season to interview workers, inspect housing and vehicles, and review records.

Cabrera pled guilty to fraud in foreign labor contracting on July 14, 2016, and is currently incarcerated. Less than a month later – on Aug. 8, 2016 – a jury found Bart guilty of conspiring to commit fraud, conspiracy to commit false swearing in an immigration matter, conspiracy to commit fraud in foreign labor contracting, and conspiracy to commit wire and mail fraud.

The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor of a temporary or seasonal nature.

Before the U.S. Citizenship and Immigration Services can approve an employer’s petition for H-2A visa workers, an employer must file an application with the department stating that there are not sufficient workers who are able, willing, qualified and available, and that the employment of nonimmigrant, temporary workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The law provides for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs.
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