Legislation Would Ease Access to Seasonal Foreign Labor

By Roy Maurer Nov 24, 2015

Companion bills introduced in the U.S. House and Senate aim to reform the nation’s troubled H-2B guest worker program by improving U.S. employers’ access to foreign labor.

The Strengthen Employment and Seasonal Opportunities Now Act (H.R. 3918) and the Save Our Small and Seasonal Businesses Act (S. 2225) would streamline the H-2B visa program used by employers to hire foreign workers for temporary and seasonal work, such as forestry, seafood processing, landscaping and hospitality jobs.

“Many small businesses … rely heavily on seasonal employees with H-2B visas to support industries such as forestry and tourism,” said Rep. Bob Goodlatte, R-Va., who introduced the House bill. “Unfortunately, the Obama administration has issued regulations that are overly burdensome for the small and seasonal businesses that play by the rules and use this guest worker program to hire a legal workforce.”

The Obama administration’s April 2015 regulations governing the certification process for H-2B visa workers “make an already complex process more complicated,” according to the U.S. Chamber of Commerce.

The rules modified the H-2B labor certification process, imposed new recruitment requirements on employers, strengthened worker protections, increased transparency and limited the sources for determining prevailing wages.

“The new requirements inject an unreasonable amount of uncertainty into the H-2B visa program and make its continued usage unworkable for many current employers that rely on it to meet their seasonal labor needs,” the Chamber wrote in a letter to the Department of Labor (DOL).

The rule was also criticized for requiring employers to advertise job positions in newspapers rather than on online job banks. “DOL has once again failed to take the opportunity to move beyond newspaper advertisements as a method for recruiting American workers,” the American Immigration Lawyers Association stated in a separate letter.

The April 2015 regulations followed years-long litigation over the program’s rules, which resulted in the program’s complete shutdown for about two weeks in March 2015.

“Generally, employers have really struggled with the program over the last several years, in part because of the lack of predictability and transparency with the program, which are critical for workforce planning,” said Chad Blocker, a partner in law firm Fragomen’s Los Angeles office. “What we have is a tremendously compressed filing period where there are a number of steps the employer must take within a very short period of time … before the worker’s employment start date. The spirit behind the bills is to promote greater usability for the program and address the needless delays in the process,” he said.

The bills would provide for expedited H-2B application processing and eliminate the DOL’s role in administering the program, in favor of the Department of Homeland Security. “This would be a pretty novel approach and a significant change, because the DOL has always had a role in the labor certification process,” Blocker said.

The Senate bill would allow staggered entry of H-2B workers, which currently is permitted only for workers in the seafood industry. Seafood industry employers can bring in H-2B workers anytime during the 120-day period after their certified start date as long as certain conditions are met, without having to file another labor certification application or H-2B petition.

The Senate bill also would create a conditional approval process for petitions filed after the 66,000 annual cap on H-2B visas has been reached.

Under H.R. 3918, workers who have been counted against annual H-2B visa caps in prior years would in most cases be able to return in subsequent years without being counted against the cap a second time. “Since the need for these visas by small and seasonal employers greatly outstrips the available supply, the bill provides that guest workers who abide by the law and return home at the end of a season can in many cases return to the U.S. to work without being counted against the visa quota,” Goodlatte said.

The Senate bill would exempt from the annual cap those workers who came to the U.S. on the visa in one of the three immediately preceding fiscal years. Workers who skip a year or who are subject to the exemption for three consecutive years would again be counted against the cap when they return.

The H-2B Workforce Coalition, an alliance of more than 40 various industry associations which typically employ H-2B workers, commended the bills.

The legislation “will right the uncertainties and frustration that have plagued the program for the past several years, allowing me to grow my company and expand my American workforce,” said James River Grounds Management President and CEO Maria Candler, a member of the National Association of Landscape Professionals. “As an employer who relies on H-2B workers to fill seasonal vacancies when I cannot find American workers, I am extremely grateful.”

Brian Crawford, vice president of government and political affairs at the American Hotel & Lodging Association, explained that “first and foremost, hotel industry employers look to the U.S. workforce to fill critical job functions during high-demand seasons, but in many cases across the country those workers are simply not available. The much-needed reforms to the program provide American employers the tools they need to recruit workers for temporary employment.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy


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