In early March, two federal agencies that help administer one of the largest sources of seasonal workers in the United States stopped processing applications, essentially shutting the program down.
The U.S. Department of Labor and the U.S. Citizenship and Immigration Services both are involved in processing thousands of annual applications to the H-2B program, which grants temporary visas to seasonal workers in non-agricultural industries. One of the key areas of regulation – and contention – during the past few years is the wage rates for seasonal workers.
But after a challenge from Florida Rural Legal Services, a non-profit labor rights group, the Northern Florida District Court ruled on March 4 that the Department of Labor does not have the authority to issue regulations in the H-2B program, including standards for calculating prevailing wages for seasonal workers.
DOL then announced that it would immediately stop processing requests for prevailing wage determinations and applications, and would also not accept any new requests or applications. USCIS followed suit on March 5.
However, as of March 19, the DOL was allowed to process H-2B applications until April 15.
In mid-March, DOL and Homeland Security announced that they were working to issue a joint Interim Final Rule on H-2B, according to the Office of Foreign Labor Certification. They hope to have the ruling by April 30.
National and state green-industry associations responded quickly with a call to action when the two agencies stopped processing H-2B applications. AmericanHort told its members, “It is essential that you act, even if you have your workers for this year, because you could be impacted next year. Even if you don’t use the program, it hurts the whole green industry when we suffer from labor shortages resulting from bureaucratic dysfunction and visa program chaos.”
In a letter dated March 17 to DOL and Homeland Security, Sen. Rob Portman (R-Ohio) wrote, “Any unnecessary suspension of the [H-2B] program undermines congressional intent and inflicts unnecessary harm on the economy.”
He also wrote, “Your Departments’ announcement of their intention to issue an interim final rule before the end of next month [April] is a welcome development. But I hope you will instruct your Departments to take additional steps … to mitigate ongoing harm while the interim final rule process is underway. Given the urgency of the situation, I respectfully request prompt responses to this letter detailing what, if any, additional steps your Departments will take to respond to the Perez injunction.”
H-2B background
In December 2014, the Department of Labor announced that employers could no longer use private or third-party wage surveys to calculate average rates of pay for H-2B workers in their markets. Instead, employers would have to rely on wage rates published by the federal Bureau of Labor Statistics.
The March 5 decision was not related to the federally mandated cap on H-2B workers. USCIS allows 66,000 new H-2B petitions per fiscal year. Half of those petitions are reserved for employees working between Oct. 31 and March 31. The other half are allowed between April 1 and Sept. 30. On Feb. 2, USCIS announced that the first half of the total allowed seasonal workers had been reached.
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H-2B FAQ The DOL’s Office of Foreign Labor Certification issued an FAQ regarding its implementation of the Northern District of Florida’s March 18, 2015 decision to temporarily stay its earlier judgment in Perez v. Perez. As a result of this stay, the department has temporarily resumed processing requests for H-2B prevailing wage determinations and applications for H-2B temporary non-agricultural labor certification until April 15, 2015. Q: I am interested in applying for H-2B workers. Can I file an H-2B job order for H-2B recruitment during the stay of the Court’s decision in Perez v. Perez? A: Yes. During the temporary stay granted by the Court, employers may continue to file H-2B job orders with the SWAs for purposes of recruiting U.S. workers. In circumstances where the SWA has posted a job order prior to April 16 and remains active after the end of the temporary stay, the SWA will be required, in accordance with the terms of the Court’s order, to cease processing the job order for the purpose of complying with the 2008 H-2B regulations. On or after April 16, SWAs will not be able to post job orders for purposes of complying with the 2008 H-2B program. However, employers can continue to submit job orders for the purpose of soliciting U.S. workers for job opportunities. Q: I filed a prevailing wage request with the National Prevailing Wage Center (NPWC) prior to March 5, 2015,and it has been held in abeyance due to the Court’s order. However, I understand that the Court has granted a temporary stay through April 15. What will happen to my prevailing wage request under the H-2B program? A: As soon as the Court’s temporary stay order was issued on March 18, 2015, the NPWC resumed processing the prevailing wage requests under the H-2B program filed prior to the vacatur of the 2008 regulation and held in abeyance. In accordance with standard operating procedures, the NPWC resumed processing these prevailing wage requests on a First-In-First-Out basis and will make every effort to process them as expeditiously as possible up to April 15, 2015. However, because of the court’s order, those requests not completed prior to April 16, 2015, cannot be processed under the 2008 H-2B rule as of that date.
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Many landscapers – as well as other industries like hospitality and food production – rely on the H-2B program to find employees they say they can’t find domestically.
In fiscal year 2014, 93,649 H-2B positions were certified by the government. Landscapers employed 34,845 seasonal workers during that time, the most out of any industry. The next-closest industry, forest and conservation workers, employed just 9,602, according to data from the Department of Labor. DowCo Enterprises in St. Louis was directly affected by the injunction.
“We found ourselves on the wrong side of this mess and are scrambling to find 30 experienced professionals before the busy spring season,” says DowCo President Maurice Dowell. “Not getting our reliable workers into the country is impacting every facet of our business from sales to production.”
Chuck Bowen is editor of Lawn & Landscape magazine. Nursery Management editor Kelli Rodda contributed to this story.
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