Like many of you, I am a solo practitioner and my practice covers the gamut from family to business immigration. I live and work in a beautiful small rural community in the Rocky Mountains in Colorado. Many of my clients are small business owners who are reliant on the H-2B program to find workers for their landscaping, paving, and house cleaning businesses, among others. My area’s economy is largely driven by tourism. Staffing needs rise and fall with the influx of guests to the valley, making it difficult to find and retain workers on a steady basis. High housing prices don’t help either.
So, what a relief that Congress created the H-2B program in 1986 with the passage of the Immigration Reform and Control Act (IRCA), right? Not so fast ….
Although this nonimmigrant classification was designed for non-agricultural employers with a short-term demand for workers who were unable to find Americans to satisfy that demand, Congress set the number of H-2B visa holders allowed to enter the country at 66,000 per fiscal year (FY), with 33,000 visas allocated for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 visas for workers who begin employment in the second half of the fiscal year (April 1 – September 30).
66,000 workers per fiscal year may sound like a large number. But, in FY2017, the Office of Foreign Labor Certification (OFLC), the office within the U.S. Department of Labor charged with issuing temporary labor certifications for H-2B workers, received requests to certify the need for 165,182 workers, more than double the number of H-2B workers permitted under U.S. immigration law. This year was even worse because on January 1, 2018, the OFLC received requests to certify the need for more than 81,000 workers for an April 1, 2018 start date. That’s for requests covering only half the fiscal year.
Without the ability to attract local staff, and without the opportunity to hire temporary foreign workers, many employers run the risk of being forced to close their doors. This does not make America great.
What can AILA members and employers do? First, get out there and advocate with your Members of Congress. Contact your representative and let them know how important the H-2B program is for U.S. businesses and your local economy, urge them to demand that DHS and DOL to take immediate action and provide H-2B cap relief. Go one further and call on them to permanently fix the H-2B cap issue and help U.S. employers.
AILA members and employers can also lift up this issue in your local media by writing opinion pieces and letters to the editor regarding how U.S. businesses are impacted when they are unable to hire and retain the workforce that they need. When you see an article mentioning immigration or covering business workforce needs and unemployment numbers, chime in to make sure the public is aware of this issue and call out your Senators and Representative in that piece. Then take that letter or op-ed in the next time you meet with your congressional member’s office!
The good news is that many Members of Congress do understand the importance of the H-2B program, and even included a provision in the March 23, 2018 omnibus spending bill to allow for a one-time increase of this fiscal year’s H-2B cap, yet this is simply not enough.
Those additional H-2B visas authorized under the omnibus bill have not yet been released, more than five weeks since the bill’s passage. Per recent congressional testimony, the Secretaries of the Departments of Labor and Homeland Security, who have been granted the authority to raise the H-2B cap, have consulted on the issue and DHS has finalized its recommendation, yet that recommendation is still not final.
As the H-2B program is used by employers to fulfill a temporary need, usually no longer than a ten-month period, and as the regulations only allow for certain steps in the process to begin between 90 and 75 days prior to the employer’s start date of need, the timing of the release of the additional H-2B visas is a critical issue.
Obtaining an H-2B visa can take up to a month at least, barring unforeseen complications, such as the issuance of a Request for Evidence (RFE) by the U.S. Citizenship and Immigration Services or problems at the U.S. Consulate abroad. Even if the H-2B cap were increased tomorrow, employers wouldn’t be able to put workers into place until June at the earliest. That’s too late! What about landscapers or resort owners who looked to do their spring cleans in April and May, so they can plant gardens in time for July 4th?
Employers need relief urgently. But the real problem underlying the H-2B program is the lack of permanent cap relief. Uncertainty about visa numbers running year to year does not help employers make productive, proactive business decisions. In order to operate effectively, employers need to have certainty that they will be able to find or bring over the staff they require to operate their businesses.
Together, let’s make our voices heard by urging our representatives to find a permanent fix to the H-2B cap issue. These employers are doing everything right and the system isn’t working. Let’s update the system!