In this second session of the 113th Congress OABA is working as part of the H-2B Workforce Coalition to encourage Members of Congress to add a rider to the annual appropriations bill (one of twelve) for Labor, Health and Human Services, Education, and Related Services. The coalition is a joint effort of about forty different organizations including groups such as the Association of Hotels and Lodging, the National Association of Realtors, Immigration Works USA, the National Association of Homebuilders, and many others. The rider we are requesting would prohibit DOL from promulgating an H-2B wage methodology rule that does not preserve an employer’s right to use legitimate private wage surveys and that does not preserve a multi-level wage methodology that provides for varying wage levels that are commensurate with the skill and training levels required for the position.
We are also concerned about the program’s mandated cap of 66,000 (33,000 for the first half of the fiscal year and 33,000 for the second half of the year). The cap for the first half of fiscal 2014 was hit on March 14 and we are closely monitoring the second half cap. In order to ensure that seasonal small businesses continue to have access to needed H-2B workers, therefore we are asking Congress to re-instate the H-2B returning worker exemption that was in place from 2005 through 2007. This expired provision of law exempted from the cap H-2B workers who have complied with past visa requirements and worked in the program during one of the preceding three years.
In addition, the rider the coalition has proposed would expand a rider added last year for just the seafood processors, “staggered entry”, to allow all H-2B employers to bring workers in on multiple dates as they ramp-up.
Beyond the work we are doing with the Coalition, OABA is bringing another overreaching regulatory effort to the attention of Congress. As our Members know, DOL issued a final rule in 2012 that if implemented would make the H-2B program more complicated and prohibitively burdensome for small, seasonal employers. The final rule was published in the Federal Register/Volume 77, No. 34/ Tuesday February 21, 2012/ Rules and Regulations, 20 CFR Part 655 and 29 CFR Part 503. The rule is 35 pages and preceded by 109 pages of review and response to the comments offered on the Notice of Proposed Rulemaking. DOL has not been able to implement this rule due to a nationwide preliminary injunction issued by a federal district judge and upheld by the 11th Circuit Court of Appeals.
The rule would 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 also would involve labor unions in the hiring process and require employers to pay transportation and subsistence costs for U.S. workers who work at least 50% of the season. In addition, the rule includes provisions that would require employers to pay workers with “corresponding employment” duties similar wages.
The rule is based on the mistaken assumption that the H-2B program is fraught with abuse. While this is not the case, DOL and DHS already have significant authority to enforce existing regulations against any employers that are not meeting their obligations to their H-2B and U.S. workers. The provisions of the 2012 rule are unworkable and unnecessary.
We have suggested that the Committees on Appropriations consider adding language to the FY ’15 Labor, Health and Human Services, Education, and Related Agencies bill to prevent the Department of Labor from using appropriated funds from implementing or enforcing this rule.