The H-2B Program Gets Shutdown: Pubisher’s Message

Sorry, readers, here’s another new challenge in finding willing workers.

The construction and landscape sectors require quality employees, and there’s just not enough to go around. That’s the onus of our cover story in April. Yet, the federal government is making finding valuable labor even more difficult this spring and summer. The U.S. Department of Labor (DOL) and Homeland Security have essentially shut down the crucially needed H-2B program. Here’s how it happened.

A non-profit labor rights group called Florida Rural Legal Services recently challenged the DOL, saying it actually doesn’t have the authority to issue regulations and visas for its H-2B program, which allows American employers to temporarily hire non-immigrants to perform non-agricultural labor in the United States. A District Court ruled on March 4 that the DOL did lack the sole authority to issue formal notice-and-comment rules under the Adminstrative Procedure Act, a statute that governs the way in which administrative agencies of the federal government propose and establish regulations. In response, the DOL and Homeland Security stopped processing H-2B applications. Wait, what?

That was the response from companies, associations and congressmen across the country, noting the DOL and Homeland Security did not need to shut down the program. Seasonal industries from the landscape and construction sectors to the commercial crabbing and fishing markets rely heavily on hard-working H-2B visa applicants. Small businesses specifically, including your local equipment dealers, distributors and contractors, rely on the program as a legal resource for temporary seasonal employees and as a critical key to success.
In mid-March, the DOL and Homeland Security announced that they were working to issue a joint ruling on the H-2B program. According to reports, they hope to have a ruling by April 30, announcing they would also allow the processing of H-2B applications until April 15. Of course, that’s really not good enough for companies around the country that need seasonal non-immigrant workers now.

Further, without continued intervention by H-2B users, the industry could face new burdensome H-2B requirements on or before April 30 that could render the program unusable once again. The industry needs to ensure that none of the 2012 H-2B program rule provisions (already blocked by the court) are included in the new interim rule. The blocked rule would (among other things) 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 rule would also involve labor unions in the hiring process and required employers to pay transportation and subsistence costs for U.S. workers who work at least 50 percent of the season. Organizations have been vocal.

“For nearly 40 years, the H-2B program has helped fill the staffing needs of the tourism, seafood, landscaping and construction industries, to name a few,” explained U.S. Senator Rob Portman (R-Ohio) in an official letter.

“Businesses in these sectors employ thousands of Americans, help grow our economy, and produce substantial local, state and federal tax revenue. Unless the H-2B program is promptly restored, however, those employers may be unable to meet their staffing needs or fulfill commitments made to customers in reliance on the H-2B program.”

Keith Gribbins is the Associate Publisher of Compact Equipment.