Businesses Seek Renewed Access to Extra Guestworkers

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By Laura D. Francis

An extra boost of H-2B low-skilled guestworkers for businesses that rely on the visa program is now gone when it may be needed most.

The H-2B program provides work visas for low-skilled temporary or seasonal work outside agriculture. There are 66,000 visas available each fiscal year, split into 33,000 for each half of the year. Landscaping, hospitality, forestry and amusement are among the biggest users of the program.

The H-2B returning worker exemption allowed employers to bring in foreign workers who had come to the U.S. in at least one of the prior three fiscal years without those workers counting toward the annual cap on the visas. The exemption appeared in an omnibus government spending measure signed into law in December 2015 and that expired Sept. 30.

The continuing resolution funding the government through April 28, 2017, doesn’t contain the exemption, despite its inclusion in a Department of Homeland Security funding bill that cleared the House Appropriations Committee.

Businesses Won’t Get Their Workers

“There are going to be seasonal businesses that cannot get their workers,” H-2B Workforce Coalition Co-Chair Laurie Flanagan told Bloomberg BNA Dec. 19. “What’s really concerning” is “the timing,” said Flanagan, who represents the National Association of Landscape Professionals and AmericanHort in the coalition.

That’s because landscapers are going to need those workers in the spring.

Landscaping is the single largest user of the H-2B program. According to the Labor Department, 37.7 percent of all H-2B applications in fiscal year 2016 went to the industry. The next highest user, forestry, made up only 7.9 percent of all applications.

The busy season for landscapers starts March 1 or April 1, depending on location, Paul Mendelsohn, vice president of government relations at the National Association of Landscape Professionals, told Bloomberg BNA Dec. 21. By that time, “they will have already had to have their workforce in place, or do some extreme juggling” to fulfill their contracts, he said.

If Congress doesn’t bring back the returning worker exemption until the end of April, it will be too late for landscapers to realize the benefit, he said.

‘Panic Mode.’

The returning worker exemption was a “huge thing” for members of Mendelsohn’s association, he said. It provided some certainty in terms of the size of the landscapers’ workforces and also allowed them to bring back the same workers, who were familiar with the work, the equipment and the clients, he said.

Now that they have to compete again for the 66,000 visas, they are “in panic mode,” Mendelsohn said.

Even more problematic is the way the H-2B program is administered, he said. The DOL only allows employers to submit applications 45 days before the date they first need the workers, Mendelsohn said, so they aren’t able to apply early in order to get an earlier place in the visa count line. So by the time an employer clears the DOL and submits a petition to U.S. Citizenship and Immigration Services, “in many instances the cap will have already been reached,” he said.

The situation may be even worse in fiscal year 2017, Mendelsohn said. A lot of companies were waiting to see what Congress did with the latest continuing resolution and so plan on applying for the 33,000 H-2B visas available for the second half of the fiscal year, he said. The cap for the first half is expected to run out in late December or early January and that for the second half should follow shortly thereafter, he said.

Should Congress Help Businesses Find Workers?

Mark Krikorian, executive director of the Center for Immigration Studies, doesn’t have much sympathy.

“Businesses need to work within the constraints of the American labor market,” he told Bloomberg BNA Dec. 21. If they can’t get workers they need, they’ll have to “make do,” he said. “It’s not Congress’ job to enable American employers to avoid hiring American workers,” said Krikorian, whose organization supports lower immigration levels.

“These gimmicks like the returning worker provision are simply a way that lobbyists” are “trying to make an end run around the numerical caps,” he said.

“The idea that we can’t get by without importing people to mow the lawns is laughable,” Krikorian said.

But Mendelsohn said businesses do try to hire American workers and in fact prefer them over guestworkers.

“There aren’t a lot of people who are willing to do seasonal work who are local in this particular time period that we’re in,” he said. “Landscaping is a tough job, it is arduous, it takes place a lot of time under a burning sun and most people just don’t tolerate those conditions,” he said.

“There’s a lot of myths about this so-called unemployed local American worker who’s being disadvantaged by the H-2B program in particular,” Mendelsohn said.

Numbers Don’t Match Labor Shortage

Daniel Costa, director of immigration law and policy research at the Economic Policy Institute, said the numbers don’t show a U.S. worker shortage in the H-2B industries.

Wages in 10 of the top 15 H-2B occupations—including landscaping—declined from 2004 to 2014, according to EPI data included in testimony Costa provided to a Senate subcommittee in June. Meanwhile, the unemployment rate in 14 of those 15 positions rose from the 2004-2005 period to the 2013-2014 period.

That means there’s no evidence of a national labor shortage in the H-2B-reliant industries, Costa told Bloomberg BNA Dec. 22. That’s not to say there aren’t localized shortages, but employers having difficulty finding workers could try raising their wages or recruiting from out of state, he said.

The argument that Americans just won’t perform the jobs is more tenable in the agriculture industry, Costa said. “The pay and working conditions are just absolutely horrific and just terrible and have always been,” he said.

But “mowing lawns isn’t like working in the fields and picking strawberries,” he said. “I don’t see how those are such terrible jobs that U.S. workers wouldn’t do.”

Protections Stripped From Program

A big part of the problem is Congress’ elimination of worker protections contained in Obama administration regulations, Costa said.

For example, he said, the regulations limited employers’ use of private wage surveys to determine the wage they should pay their H-2B and corresponding U.S. workers. But Congress removed that restriction, allowing employers to use custom wage surveys to justify paying a lower wage, Costa said.

Lawmakers also stripped the DOL of authority to more closely monitor employers’ recruitment of U.S. workers and conduct audits to ensure program compliance, he said.

“People who are skeptical about this program would feel a lot better” if the Obama administration rules were being implemented and enforced, Costa said. Without those protections in place, “you can’t have faith that the program isn’t going to be used to keep wages low,” he said.

‘Not an Issue of Wages.’

“It’s not an issue of wages,” Flanagan of the H-2B Workforce Coalition said. It’s about the workforce not being there to perform seasonal jobs that can be very labor-intensive or in resort areas where there just is no local workforce, she said.

Businesses that use the H-2B program “are committed to hiring a legal workforce and try to recruit American workers,” she said.

Both Flanagan and the National Association of Landscape Professionals’ Mendelsohn said they’re hopeful that Congress will see the benefit in ensuring businesses’ access to H-2B workers.

“It makes a lot of sense,” Flanagan said. These are workers who did their jobs, didn’t overstay their visas and went home when the season was over, she said. “It’s a way to exempt those who exhibited good behavior” from the annual cap, she said.

“We have a program that has been successful both from the employers’ perspective as well as the money benefits the workers themselves receive, demonstrated by their return year after year after year,” Mendelsohn said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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