Business, Worker Advocates Ask DOL, USCIS To Find Way to Reinstate H-2B Visa Program

The Obama administration must find a way to keep issuing H-2B low-skilled, nonagricultural guestworker visas despite court decisions enjoining Labor Department regulations governing the program, business and worker advocates alike told Bloomberg BNA.

Tamar Jacoby, president and chief executive officer of ImmigrationWorks USA, which represents small and mid-sized businesses advocating for an immigration overhaul, called the recent shutdown of the program a “disaster.”

“These are the people who who’ve been trying to play by the rules all these years,” she told Bloomberg BNA March 10. “They said okay, we’ll jump through government hoops,” including bureaucracy, paperwork and legal fees, in order to hire seasonal foreign workers, she said, and are “being toyed with in the most outrageous way.”

Laurie Flanagan, co-chair of the H-2B Workforce Coalition, said a “conservative” estimate is that some 2,300 employers and 33,000 H-2B workers are affected by the program’s shutdown.

The coalition, composed of industry groups ranging from the American Immigration Lawyers Association and the American Hotel and Lodging Association to the American Moving & Storage Association, the American Horse Council and the Society of American Florists, made that estimate before U.S. Citizenship and Immigration Services announced March 9 that it was halting all processing of H-2B petitions45 DLR A-11, 3/9/15.

The figure is likely larger now, Flanagan said.

Shutdown Followed Court Decision.

The USCIS’s halting of H-2B visa processing follows a Department of Labor shutdown of its labor certification and prevailing wage determination process for the visa program March 4.

Both agencies’ decisions were made in the wake of a March 4 decision by a federal judge in Florida permanently enjoining 2008 DOL regulations on the H-2B program (Perez v. Perez, 2015 BL 60402, N.D. Fla., 3:14-cv-00682, permanent injunction issued 3/4/15; 43 DLR A-1, 3/5/15).

Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida in December 2014 also invalidated the DOL’s 2012 H-2B regulations in a separate case (Bayou Lawn & Landscape Servs. v. Perez, 2014 BL 370226, N.D. Fla., 3:12-cv-00183; 9 WIR 7, 1/5/15, 01 DLR A-7, 1/2/15).

But Leon Sequeira, a solo practitioner in Kentucky who previously served as the assistant secretary of labor for policy, told Bloomberg BNA March 10 that the lack of DOL regulations, or even DOL-conducted labor certification, doesn’t mean the USCIS needs to stop processing H-2B petitions.

The H-2B labor certification process was set up by the DOL and Department of Homeland Security, and it doesn’t appear in the Immigration and Nationality Act, Sequeira said. Rather, the statute merely directs the DHS to “consult” with other agencies—not even mentioning the DOL specifically—in determining whether to issue the visas, he said.

Therefore, Sequeira said, invalidating DOL regulations “shouldn’t result in the program being shut down.”

Immediate Impact.

The effects of that shutdown already are being felt by employers that rely on the program.

For example, Josh Denison, who runs Fort Washington, Md.-based Denison Landscaping, told Bloomberg BNA March 10 that his company missed out on H-2B visas for the first half of fiscal year 2015 because the DOL took too long in issuing a prevailing wage determination.

According to the USCIS, the maximum 33,000 H-2B visas allocated for the first half of the fiscal year had been issued as of Jan. 26. The 33,000 visas allocated for the second half of FY 2015 would have become available April 1.

Denison said his company, which also operates in Pennsylvania and Delaware, normally brings in H-2B workers to perform landscaping and related duties in February, but couldn’t because of the delay at the DOL. In an effort to get the workers starting April 1, Denison Landscaping already had received labor certification from the DOL and had submitted its petitions to the USCIS when the latter agency announced that it too would halt H-2B petition processing.

That decision by the USCIS “stopped our season and our spring dead in its tracks,” Denison said. The company, he said, was 25 days away from hiring up to 180 H-2B workers in Maryland and up to 40 each in Pennsylvania and Delaware.

Denison said H-2B workers are the company’s “predominant labor force.” He said the H-2B shutdown means the company won’t be able to complete the work it already has contracted to perform, which will translate to lost contracts, a damaged reputation, lost business with customers and likely terminations of full-time employees.

Thune Asks for Swift Resolution.

The H-2B shutdown has drawn the attention of at least one member of Congress.

Sen. John Thune (R-S.D.) sent a letter March 9 to Labor Secretary Thomas Perez and Homeland Security Secretary Jeh Johnson asking them to resolve the issue as quickly as possible.

“South Dakota relies heavily on H-2B visa holders serving as seasonal employees supporting the tourist industry throughout South Dakota, including the Black Hills,” Thune wrote in the letter. “Without the ability to hire such seasonal workers for the upcoming tourist season, many local businesses will be severely impacted, and some may be unable to operate. H-2B visas are also essential to the construction industry in South Dakota, which contributes significantly to my state’s economy.”

Jacoby, Flanagan and Sequeira all agreed that the USCIS could continue operating the H-2B program without DOL regulations or even DOL involvement.

“This is just the Department of Labor having a little fit,” Jacoby told Bloomberg BNA. She called the H-2B shutdown “vindictive” and said the Obama administration could find a way to keep the program up and running if it wanted to.

But “they’ve always wanted to kill the program,” and “this is a great excuse,” Jacoby said. She compared the effects of the H-2B shutdown to a natural disaster destroying the plants of a nursery business.

This is a “purely government-engineered natural disaster,” she said.

DOL Didn’t Defend Lawsuit.

Sequeira said the DOL’s apparent lack of enthusiasm in defending the Perez case was “troubling.”

“It was far from a vigorous defense in that case,” he said, pointing out that the plaintiff wouldn’t have survived a serious challenge to his standing to sue, much less the level of irreparable harm that needed to be established in support of a permanent injunction.

Sequeira added that the DOL made the same losing arguments in defense of its authority to promulgate the 2008 regulations as it did before the same judge in the same court when defending its 2012 regulations.

He suggested that the agency could be trying to set up a U.S. Supreme Court case by creating a circuit split between the U.S. Court of Appeals for the Eleventh Circuit, which upheld the preliminary injunction against the 2012 regulations based on a lack of DOL authority to promulgate them (Bayou Lawn & Landscape Servs. v. Sec’y of Labor, 713 F.3d 1080, 2013 BL 87707, 11th Cir.; 64 DLR A-1, 4/3/13, 7 WIR 258, 4/15/13), and the Third Circuit, which held that the DOL had authority to promulgate the 2011 H-2B wage rule (Louisiana Forestry Ass’n v. Secretary of Labor, 745 F.3d 653, 2014 BL 31651, 3d Cir.; 24 DLR A-3, 2/5/14, 8 WIR 121, 2/17/14).

Flanagan alternately suggested that the DOL revert to using guidance to govern its role in the H-2B process, which the agency had been doing up until the 2008 regulations came out.

But Rachel Micah-Jones, executive director of worker rights advocate Centro de los Derechos del Migrante Inc., said regulations—particularly those patterned after the 2012 DOL regulations—are “critical.”

Worker Advocate Calling for Joint Rule.

To address the Perez ruling and reinstate the H-2B program, CDM is calling for the DOL and DHS to issue a joint rule that contains the same worker protections as the 2012 rule. The agencies took similar action in response to a separate line of litigation over the H-2B wage rule, issuing a joint interim final rule in April 2013 78 DLR A-4, 4/23/13, 7 WIR 299, 4/29/13.

“If the program is to operate, it needs to guarantee basic protections for workers,” Micah-Jones told Bloomberg BNA March 11.

She said the structure of the H-2B program “puts workers in a vulnerable position” because they’re leaving their home countries to work in the U.S. and are tied to a single employer while they are here.

Even under the 2008 H-2B regulations, which didn’t contain the same worker protections as the 2012 regulations, there were “huge abuses in the program,” Micah-Jones said. “We’re talking about really basic stuff like the right to know where you’re going to work” and a “guaranteed minimum number of hours,” she said.

Payment of illegal recruitment fees also is a common theme that needs to be addressed in regulations rather than guidance in order to add “some formality” to the rules, she said.

Just Few ‘Bad Apple Employers’?

Jacoby told Bloomberg BNA that worker rights violations can be chalked up to a few “bad apple employers.” She admitted that tying workers to a single employer “opens the way” for some employers to take advantage of that situation, but said it’s a “distinct minority” that actually do so.

Micah-Jones disputed that the problems faced by H-2B workers can be isolated to a handful of bad employers.

She said CDM surveyed more than 200 H-2B workers who worked in a variety of industries in different states, and found that 58 percent paid illegal recruitment fees. In addition, one in 10 workers paid those fees to a recruiter when no job in the U.S. actually existed, she said.

Although it’s third-party recruiters charging the illegal fees, Micah-Jones said, employers are ultimately in charge of the hiring process and obligated to ensure that their contractors aren’t breaking the law. “They’re the ones who are in a position to control what happens in their supply chain,” she said.

Micah-Jones added that she has seen cases where an employer has hired a recruitment agency at no cost. “How do they think the agency is being compensated?” she asked, pointing out that such a situation at least implicitly suggests that the recruitment agency will be charging the workers.

The Southern Poverty Law Center, which also called for a joint DOL/DHS rule patterned after the 2012 DOL regulations, said March 6 that a recent jury verdict against a Gulf Coast marine services company demonstrates the need for worker protections in the H-2B program.

Last month a federal jury in Louisiana awarded $14 million to five H-2B workers from India who claimed they worked for Signal International LLC in poor conditions after being lured to the U.S. with false promises of permanent residency 33 DLR A-1, 2/19/15, 9 WIR 154, 3/2/15.

Long-Term Legislative Changes Sought.

Flanagan told Bloomberg BNA that, although the short-term goal is to get the H-2B program back up and running as soon as possible, legislative changes do need to be made to the program.

She said the annual cap of 66,000 visas is “inadequate when the economy is strong and recovering,” and that there needs to be a “workable wage formula,” which was included in the comprehensive immigration bill that passed the Senate in June 2013 7 WIR 481, 7/8/13, 124 DLR AA-1, 6/27/13.

Micah-Jones also called for changes that would allow H-2B workers to change employers within the U.S. and maintain their visa status.

However, Sequeira said any immigration legislation is unlikely in the current Congress. He said the recent DHS funding bill for the remainder of fiscal year 2015 would have been the “perfect candidate” for a rider related to the H-2B program and the DOL’s authority.

The House ended a standoff of more than a month over the measure March 3 by passing a “clean” DHS spending bill that didn’t contain language barring the new deferred action programs President Barack Obama announced as part of his November 2014 executive action on immigration 41 DLR A-10, 3/3/15. The president signed the bill into law the next day.

For now, the DOL and USCIS will have to figure out how to reinstate the H-2B program under current law.

Employers have been on a “roller coaster” for years with all the different H-2B rules and litigation, Flanagan said. “They don’t know what to do” with no program at all, she said. “You need to preserve a workable seasonal program,” she added.

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

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com