H-2B Cap Hit, Adding to Visa Program Woes

The H-2B visa cap for the first half of fiscal 2015 was hit late in January. As a result, some growers may not have access to the H-2B workers they need during the months ahead. The visa cap and resulting labor shortages will have impacts throughout the horticulture industry. The landscape industry is the single largest user of the H-2B program, and if landscape companies do not have access to needed laborers, they may be forced to scale back operations and purchase fewer plants and other supplies.

According to the Department of Homeland Security’s (DHS) February 2 press release, DHS will reject any new H-2B petitions for employment prior to April 1 that were received after January 26, 2015. While employers can reapply for visas for employment beginning after April 1, the 33,000 visas allocated for the second half of the government’s fiscal year (April 1 – September 30) could be used up soon.

This announcement follows another blow to the H-2B program. In December, in response to a court order, the Department of Labor (DOL) announced that it would no longer accept employer-provided H-2B wage surveys. Employers now must rely on the prevailing wage rates derived from the DOL database, which are often higher than those derived from more accurate private wage surveys.

Further, on December 17, DOL issued a notice that, if allowed to go into effect, will invalidate the Bureau of Alien Labor Certification Appeals decision in the Island Holdings case. Under the terms of the notice, employers could be assessed back wages from appeals of supplemental prevailing wage determinations that were issued mid-season in 2013.

AmericanHort and PLANET filed joint comments calling on DOL to abandon its plans to issue a declaratory order, explaining that such a move would deny employers of their right to appeal DOL wage determinations. We also signed onto more extensive comments filed by the H-2B Workforce Coalition. The H-2B Workforce Coalition hired a respected legal team to respond to the DOL proposal.

In conjunction with the H-2B Workforce Coalition, AmericanHort also hired an economist to complete a report on wage surveys. His report demonstrates that, in many cases, wage surveys yield more accurate and appropriate wages for a given occupation in a local area than using the DOL Occupational Employment Statistics database to determine prevailing wage rates. We will continue to fight hard on all fronts to preserve the H-2B program.

AmericanHort and our state grassroots partners are working on Capitol Hill to reverse these outcomes. Take action now to send letters to your elected Senators and Representative urging their support. We are advocating for Congress to immediately pass legislation, through the Department of Homeland Security appropriations bill or any other mechanism, to reinstate the H-2B returning worker mechanism that was in place from 2005 to 2007, and to require DOL to resume accepting H-2B wage surveys. More than 600 letters have been sent to Congress so far. Please send yours today.

Visit American Hort’s website for more information.

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