Important Progress on H-2B Program
Friday, October 30, 2015
Posted by: Craig Regelbrugge, AmericanHort
WASHINGTON, D.C. - AmericanHort and PLNA members who use the H-2B program continue to deal with the costs, frustration and lack of certainty created by the H-2B regulations issued by DOL and DHS in April, as well as by an extremely limiting cap on the number of visa workers who can enter the country each fiscal year.
In response, a bipartisan group of Senators has urged DOL to immediately address these delays. Senators Burr (R-NC), Mikulski (D-MD) and 24 others sent a letter to DOL Secretary Tom Perez demanding that DOL address these delays. Rep. Andy Harris (R-MD) sent a similar letter.
Next, on October 29, Senators Tillis (R-NC), Mikulski (D-MD), Cassidy (R-LA) and Warner (D-VA) introduced the “Save Our Small and Seasonal Businesses Act of 2015.” The bill would remedy the key issues that employers continue to face with the H-2B program. It would do the following:
- Create an H-2B returning worker exemption;
- Require wages to based on the job category and experience level required, rather than the median wage;
- Allow the use of private wage surveys;
- Return the H-2B program to an attestation-based process;
- Specify that H-2B employers do not need to provide housing to their workers, allow for payroll deductions for housing in accordance with the Fair Labors Standards Act, and require employers to “make reasonable efforts” to assist H-2B workers in locating housing;
- Specify that for H-2B workers, full time is considered 30 or more hours per week and seasonal need is limited to 10 months;
- Require employers to reimburse H-2B workers for their transportation costs from the consulate or previous worksite to the place of employment after the H-2B worker works for 50% of the season, as well as require the employer to pay return transportation costs to the consulate or new worksite;
- Require employers to report to DHS any H-2B worker who does not report for work within 5 days of his or her anticipated start date or who does not report for work or 5 consecutive days without consent of the employer;
- Allow for staggered crossing of H-2B workers;
- Allow for the replacement for the duration of the job term of an H-2B worker who leaves the job;
- Provide for conditional approval for H-2B workers by DHS once the cap is met so that visas may be issued in the order approved if cap numbers become available;
- Require the creation of an electronic reporting system between the Departments of State and Homeland Security that will provide for “real time” counting of the H-2B cap and require the State Department to provide DHS with weekly updates related to the H-2B cap count;
- Require DHS to publicly post on a website the cap count, the annual number of target beneficiaries, the cap count methodology it is using, number of H-2B visa petitions approved and received during the past five years’ and other items;
- Require the Government Accountability Office to conduct a study on the DHS cap count methodology and its accuracy; and
- Specify that DHS has exclusive authority to issue H-2B rules and final determinations.
AmericanHort and PLNA will lobby hard for the passage of this legislation. We appreciate our members asking Senators to co-sponsor the bill. Watch for a grassroots alert shortly on www.PLNA.com's Legislative Action Center. In addition, we will continue to lobby for H-2B relief through the federal appropriations process. Congress must address annual spending for the remainder of fiscal 2016 by December 11, when the existing short-term funding measure expires.