For many landscape contractors, having a good season depends on getting their H-2B workers on time and in the numbers they requested. This season has been challenging, to say the least, for those expecting to fill out their spring and summer crews with H-2B workers.
H-2B is the federal guest worker program that grants temporary work visas to nonagricultural seasonal workers from other countries. Agriculture has its own program for guest workers, the H-2A program.
The H-2B program is used by a variety of U.S. businesses to fill lower-skilled seasonal jobs, from ski resorts to hotels. Businesses that use the program must first attempt to fill those jobs with U.S. citizens before they can be granted visas for H-2B workers.
Bureaucratic bungling or intentional sabotage?
But the H-2B program never has been a sure-fire way to get the workers many contractors need.
Bureaucratic bungling on the part of the three major U.S. departments that control the program—the Department of Homeland Security (DHS), the Department of State and the Department of Labor (DOL)—seem to find new ways of screwing things up each year. With three federal agencies involved, the opportunities for ball dropping and finger pointing are astronomical.
Some even think the bungling is an intentional effort to make the program not work. Whether intentional or not, it sure seems that way at times.
Screeching halt
This year, just as many landscape contractors prepared to receive their H-2B workers, the program came to a screeching halt as the cap was reached for the number of visas to be issued in the first part of the year in late January.
Congress has set a statutory limit of 66,000 H-2B visas for each fiscal year, October 1 through September 30. In an attempt to spread the visas throughout the year, Congress allocated the visas in two blocks: 33,000 from October through March and the second block of 33,000 from April through September.
When the cap was hit in January, many landscape contractors expecting to get their workers were left holding the bag. Their only hope was that they could get a crack at the visas that would become available April 1.
The greatest threat
But the greatest threat to the program is a set of new regulations proposed by the DOL and DHS that would pretty much make the program unworkable for landscape contractors.
According to the National Association of Landscape Professionals (NALP) the new regulations would:
- Require employers to hire any qualified U.S. worker up to 21 days before the H-2B worker is scheduled to begin, even though the employer may have already offered the job to the H-2B worker, assisted with the visa process and paid transportation, housing and other associated fees;
- Involve labor unions in the hiring process;
- Require employers to pay transportation and subsistence costs for U.S. workers who work at least 50 percent of the season; and
- Require employers to pay workers with “corresponding employment” duties similar wages to the H-2B workers.
The implementation of these regulations was brought to a halt March 4, with a Florida federal court ruling that invalidated the DOL’s authority to issue regulations for the H-2B program. At that point, the DOL and DHS stopped all processing of H-2B visas, contending that due to the court ruling it had no authority to administer the program.
However, the processing of visa applications resumed after a massive grassroots lobbying effort by NALP and AmericanHort members. DOL sought and was granted a stay of the federal court order on March 17. This stay will last only until April 15.
DOL and DHS have promised to issue new interim rules by April 30. At this point, no one outside of DOL or DHS knows what will be in them. Will they be better or worse than the ones invalidated by the federal court?
So if you are a landscape contractor waiting for your H-2B workers to show up to start in on your spring backlog, you have no idea when or if they will arrive or under what set of rules you will be held accountable.
Congressional action needed
The only solution to this dilemma is congressional action to reform the H-2B program. Neither DOL nor DHS have shown themselves to be responsible stewards of the program when left to their own devices. Last session, H.R. 4238 would have fixed the program, but it didn’t even get a vote in the House. So far this year, it has yet to be re-introduced.
If you want a workable means to legally hire seasonal workers from other countries, write or call your senator or congressman. Tell them you need a legal way to hire the workers you need to keep your business afloat.
