H-2B Program Talking Points

The H-2B Program Benefits Seasonal Small Businesses and Their Workers

  • Legislation is needed to address burdensome new H-2B regulations, legal uncertainties and an arbitrary cap on the number of H-2B workers admitted to the U.S. each fiscal year.
  • The H-2B program is essential for small and seasonal businesses that cannot fill seasonal jobs with American workers despite intensive recruitment efforts. Seasonal industries that use the H-2B program include seafood processing, horse training, hospitality and amusement parks, forestry, landscaping, circuses, carnivals, food concessionaires, swimming pool maintenance, and stone quarries.
  • The H-2B program is important to workers. For H-2B workers, the program provides well-paying seasonal jobs that allow them to provide for their families and still maintain their homes in their native countries. This program is also important for American workers whose year round positions are reliant upon seasonal laborers during peak seasons. Every H-2B worker is estimated to create and sustain 4.64 American jobs.

Immediate Returning Worker Cap Relief is Needed

  • The program's congressionally mandated cap of 66,000 (33,000 for the first half of the fiscal year and 33,000 for the second half of the year) is inadequate to meet the seasonal needs of small businesses.
  • The cap was hit last year for the first time in several years. In 2015, the cap for the first half of the fiscal 2015 was reached on January 26; leaving many employers without access to the H-2B workers they needed this spring. The second half cap was reached on March 26, leaving many more seasonal employers in the lurch.
  • In order to ensure that seasonal small businesses continue to have access to needed H-2B workers, Congress must reinstate the H-2B returning worker exemption that was in place from 2005 through 2007. This expired provision of law exempted from the cap H-2B workers who had complied with past visa requirements and worked in the program during one of the preceding three years.

Small and Seasonal Businesses Need a Stable H-2B Program, Not New Burdensome Regulations

  • On April 29, the Departments of Homeland Security and Labor jointly issued a new final wage rule and a new interim final comprehensive program rule, which both of which became effective immediately. The lengthy rules create additional obstacles for seasonal employers. In order to use the program, employers are already required to work with four government agencies, undertake extensive recruitment to find America workers, and pay a workers premium wage.
  • In issuing the new rules, DHS could have used the opportunity to incorporate common sense reforms into regulation. Instead, the Department chose to jointly issue regulations with DOL, basically re-issuing onerous regulations that were either blocked by a federal court or Congress,
  • The comprehensive program rule is virtually identical to a 2012 final H-2B program rule that has been blocked by a federal court since its release. Both the new interim final rule and the enjoined 2012 program rule 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. The rules also involve labor unions in the hiring process and require employers to pay transportation and subsistence costs for U.S. workers. In addition, the rules include provisions that requires employers to pay workers with “corresponding employment” duties similar wages.
  • The new wage rule is similar to a 2013 interim final wage rule that the program has been operating under since April 2013; but the new rule includes much greater limitations on the use of wage surveys. Under the 2013 interim final rule, according to a nationwide sample of over 500 prevailing wage determinations, employers faced an average hourly wage increase of $2.91 per hour or 32.5%. This estimate does not even include labor increases for similarly employed American workers or more experienced American workers whose pay should reflect the greater skill or experience level and be proportional to the hourly wage earned by lesser skilled workers. For many seasonal employers who operate on thin profit margins, such a dramatic increase in labor costs has negatively impacted their businesses.
  • Because wage surveys often provide a more accurate representation of wages for a given occupation in a given geographic area, many employers have used wage surveys to determine fair and appropriate wages for seasonal jobs. Sadly, DOL stopped accepting wage surveys on January 27, 2015 in response to a court decision. The new final rule makes it extremely difficult for most employers to use wage surveys.

H-2B Legislation is Needed to Create Program Clarityand End a Cycle of Litigation

  • A lack of legislative clarity in the H-2B area has allowed DOL to use various tools in its regulatory arsenal to try to make the program unworkable, which hurts not only American businesses, but American workers as well.
  • Several legal challenges have been filed against DOL, which has lead to constantly changing H-2B regulations and policies. Seasonal employers cannot plan for future business growth when they do not know if they will be able to use the program from one year to the next or if they will be able to keep up with increasing costs and complexities associated with the program.
  • By statute, DOL’s role in the H-2B program is to consult with DHS, not to set new regulations. Under the law, DHS has the primary responsibility to run the H-2B program. The April 29 regulations, while issued by both DHS and DOL, greatly expand the involvement of DOL in the H-2B application process. On March 4, 2015, a federal court decision in the Northern District of Floridainvalidated DOL’s 2008 H-2B program rule on the basis that the Department lacked rulemaking authority. The court issued a similar finding in response to DOL’s 2012 H-2B program rule. That rule has never been implemented due to an injunction by the court.
  • Legislation is needed to end this cycle of litigation by clearly stating that authority for the H-2B program rests solely with DHS.

REQUESTED ACTIONS:

  1. Please reinstate the H-2B returning worker exemption through fiscal 2016 Homeland Security appropriations or any other appropriate legislation. Seasonal employers impacted by the cap must be able to to hire desperately needed H-2B workers.
  1. Please address the harmful new H-2B wage and comprehensive rules through the fiscal 2016 Labor, Health and Human Services, Education and Related Agencies appropriations bill or any other appropriate vehicle. The new regulations make the program extremely costly, complex and burdensome for seasonal employers.
  1. Please support long-term H-2B reform legislation to ensure that the H-2B program continues to be a viable option for seasonal small businesses that are committed to maintaining a legal workforce and need seasonal workers to support year round U.S. workers.

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