DOL Targets Hotels, Landscapers for H-2B Visa Enforcement

 

Roy Maurer By Roy Maurer September 24, 2018
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​Employers in the hospitality and landscaping industries that hire foreign nationals for seasonal work may soon receive a call or a visit from the U.S. Department of Labor (DOL). 

The DOL announced a new "education and enforcement" initiative focused on two of the biggest users of the H-2B visa for seasonal work—hotels and landscapers. 

The DOL's Wage and Hour Division plans to conduct more investigations of employers using the H-2B visa program and provide more compliance assistance. Key to the initiative is ensuring that employers recruit U.S. workers before applying for permission to hire temporary foreign national workers, according to the agency.

"Any employer seeking workers under this program must be ready and willing to hire qualified U.S. applicants first," said Bryan Jarrett, acting administrator of the Wage and Hour Division, in a statement. "This initiative demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed or otherwise working under substandard conditions."

[How well do you understand I-9 compliance? Take this quiz to find out.]

Demand Rising

The H-2B visa program allows U.S. employers to hire foreign nationals during peak seasons, primarily for landscaping, hospitality, seafood processing and recreation jobs. Congress has set the H-2B visa cap at 66,000 per fiscal year, with 33,000 visas granted for workers who begin jobs in the first half of the 12-month period (Oct. 1-March 31) and 33,000 visas for workers who begin jobs in the second half (April 1-Sept. 30).

The visas have seen a dramatic spike in demand in recent years. Demand was so high this past fiscal year that the government had to hold a lottery for the visas for the first time, instead of handing them out on a first-come, first-served basis. A second lottery for an additional 15,000 visas was held in June to meet industry demand for the summer season.

The landscaping industry employs more H-2B workers than any other—about 40 percent of the total, according to DOL data. Hotel housekeepers make up another 7.5 percent, behind forestry workers at 8 percent.

The Trump administration has repeatedly said that it will strictly enforce employers' use of temporary visa programs. Before employers can request guest workers under the H-2B program, they must file an application with the DOL stating that:

  • An insufficient number of U.S. workers are qualified and available to work.
  • Employing temporary foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Industry Welcomes Assistance

The H-2B Workforce Coalition, an alliance of more than 40 seasonal industry trade associations, said that "any and all compliance assistance is welcome." 

Andrew Bray, vice president of government relations at the National Association of Landscape Professionals, echoed that sentiment. "I let DOL know we want to be involved in this process," he said. "We want to be a resource and a partner, not an adversary. We get questions sometimes from our members asking if they're doing everything the right way to try to find U.S. workers, but it can be a complicated process, and I want to make sure our members have the right information and it's being interpreted the correct way."

As for investigations and audits, the H-2B Workforce Coalition stated, "We are confident any such investigations will not discover any more incidences of wage and hour noncompliance by H-2B employers than in the general employer pool. In fact, given that H-2B employers are more highly regulated, it is likely there is lower noncompliance."

Bray added that with remarkably low unemployment, there just aren't enough U.S. workers to do the jobs that are needed. "These companies have been out there trying to find U.S. workers," he said. "They go to community colleges, colleges, high schools, post the jobs everywhere you can imagine, thinking outside the box, but the workers aren't there. It's also important to understand that not every person is physically able to do some of the demanding manual labor that is required in landscaping."

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