H-2B updates from NALP--July 2021 Email
Written by Colorado Green Now   
Tuesday, July 27, 2021 01:00 AM

Colorado Green NOW

In recent weeks, there has been much legislative activity around the H-2B visa program. Andrew Bray of NALP, in his weekly email The Advocate, provided regular updates on this activity. Below you can find several of his updates that detail the story behind the whirlwind of actions in support of and against the guest worker program.

H-2B Update - Appropriations Process Leads to a Wild Week Ending with Wins (July 16, 2021)
The H-2B community rode a roller coaster of emotions the last several days while key H-2B provisions were considered during the annual U.S. House of Representatives Appropriations process.  While things looked perilous at times during this week, we’re happy to report that we secured significant wins on the H-2B front on behalf of the landscape industry. We apologize in advance for this lengthier than usual article….

This week the House Appropriations Committee marked-up and advanced several of the 11 funding bills for fiscal year 2022. Because Congress remains extremely dysfunctional, the Appropriations process is one of the only ways to pass legislation as riders to these “must pass” funding mechanisms. For the landscape industry and specifically the H-2B program the appropriations process is a place for us to play both offense on positive provisions and defense against negative provision pushed by labor unions. The H-2B program is regulated through both the Department of Homeland Security (DHS) and the Department of Labor (DOL) and the bills that fund both these Federal Departments came up for consideration this week and we detail what transpired on each below.

FY 22 Department of Homeland Security Appropriations (July 16, 2021)
On Tuesday, the House Appropriations committee approved by a voice vote non-discretionary language that will compel the Biden Administration to release additional H-2B visas when a bona fide need has been demonstrated (i.e., the cap is hit).  This is the traditional “may” to “shall” language that we have had pass out of this same committee in both 2018 and 2019.  While we wanted to insert a Returning Worker Exception (RWE) provision, getting the may to shall language was actually a significant victory.  Over the weekend Rep. Pingree (D-ME), who offered the amendment, was told by the Chair of the Committee Rep. DeLauro (D-CT) that she would oppose the RWE amendment and would demand a voice vote which could make its passage questionable and could further harm the chances of passing the Returning Worker Exception Act of 2021.  Behind the scenes our champions Reps Cuellar (D-TX), Harris (R-MD), Ruppersberger (D-MD) and Joyce (R-OH) feverishly worked to get the non-discretionary language across the finish line despite ardent opposition by Chair DeLauro. 

We know that this language could still revert to non-discretionary language during conference between House and Senate leadership, but this was still a significant win.  Without language in the House Appropriations bill it would signal a step backwards and it would destroy any chance of supplemental visas for 2022.  Additionally, at one point this week there was a significant possibility that we would get nothing. 

FY 22 Labor, Health and Human Services, Education, and Related Agencies Subcommittee Appropriations (July 16, 2021)
Last week, NALP received intel that big Labor Unions were trying to push some onerous provisions into the FY Labor Appropriations which would come under final consideration on Thursday.  On Sunday, the base text of the FY 22 Labor bill was published and to our dismay the onerous provisions appeared in the base text of the legislation.  Being in the base text makes it much more difficult to pull out rather than oppose their addition during the public amendment and debate process.  The provisions were “green lit” by the Chair herself Rep. DeLauro who has clearly embraced the Labor Unions during her first year as chair, signaling a departure from her predecessor Chair Lowey (D-NY) who retired last year.  

The proposed provisions in Sections 116, 117 and 118 would have fundamentally destroyed the program for FY 22, more specifically the provisions would: 

  • Prohibit industries from using the H-2B program if they experienced unemployment in ANY of the previous 12 months over 10% (a majority of H-2B industries would be ineligible especially considering unemployment rates and COVID-19 over the past 12 months); 
  • Prohibit construction industries from using the program even in seasonal locations or occupations;
  • Increase the baseline for wages to at least 150% of the federal or state minimum wage, whichever is higher; 
  • Require wage compliance with a collective bargaining agreement for your industry in your area, even if you are not a party to the agreement; 
  • Ban participation in the program for labor/workforce related infractions outside of the scope of the H-2B program. 

Complicating matters worse is that NALP in conjunction with the H-2B Workforce Coalition knew we had to wait to openly oppose this language until after the DHS mark-up on Tuesday to ensure we got some positive language inserted and gain some leverage within the debate that was unfolding behind the scenes within the Appropriations Committee between Members.




n Wednesday, NALP and the H-2B Workforce Coalition launched an onslaught of outreach to Appropriations Committee members.  Sending a coalition letter and a NALP specific letter to all members of the Committee while lobbing phone calls into specific offices.  The grassroots networks was also activated and sent hundreds of phone calls and over 1,800 emails in less than 24 hours. 

Leading into the hearing on Thursday morning our chances of pulling the onerous provisions (sponsored by the Chair) out of the Labor Appropriations seemed small.  Thankfully, our efforts and voices were heard, and our champions stepped up in a MAJOR way.  During the mark-up Rep. Harris introduced an amendment to completely strike sections 116, 117 and 118 from the bill.  Reps Cuellar and Ruppersberger promptly testified in support.  Rep. Pocan (D-WI) spoke out against the amendment and Rep. Harris and Rep. Pocan had a spirited back and forth, but Rep. Harris did a fantastic job reshaping the argument despite Rep. Pocan’s attempts to read from the big Labor playbook.  (If you work in Wisconsin, please contact Andrew Bray as we are looking to bring constituents into his office to educate the member on the realities of the H-2B program).  Chair DeLauro was the only other committee member to speak out in strong opposition, but the amendment then passed by a voice vote and the onerous provisions have been officially removed…for now. 

In conclusion, at times this week it looked like the H-2B program was in peril for 2022 but due to all of your efforts and engagement we won two significant battles this week.  We still have many challenges ahead and hopefully this fight highlights the need to fix the H-2B program permanently and forces the labor unions to finally negotiate with us in good faith, but we will discuss this and next steps in more detail next week.

Thank you again for all those that were engaged and active this week, we would not have won without you.

$3.5 Trillion Reconciliation Package Announced Expected to be Clearest Path for Immigration Reform (July 16, 2021)
On Tuesday leading Senate Democrats agreed on a $3.5 trillion investment plan they aim to include in a budget resolution to be debated soon.  Budget reconciliation, a process that provides a narrow path to passing some types of legislation with a simple majority, offers a path forward.  And it is not unprecedented for reconciliation legislation to include immigration reforms.  In 2005, a Republican controlled Senate did just that when changes to immigration policy were included as part of a larger budget reconciliation package.  

Currently, the House-passed legalization measures above of $40 billion over 10 years.  Meaning that a future pathway to citizenship for the more than five million unauthorized immigrants, many of whom were identified essential workers during the pandemic, would have a significant budgetary impact.  Rep. Espaillat (D-NY) stated, “For far too long, more than 11 million immigrants have waited in limbo and faced numerous obstacles along the path to legal status and citizenship – and as the only formerly undocumented member of Congress, I know this journey well. I also speak from experience when I say that becoming a United States citizen is the realization of hard work and dedication to realizing a dream for a better life.” 

On June 15th, Rep. Cuellar (D-TX) introduced the H-2B Returning Worker Exception Act of 2021 (H.R. 3897).  NALP is closely monitoring the legislation and will provide updates if and when necessary.  

H-2B Update - FY 22 Appropriations Scheduled for Full House Vote, Big Labor Still Pushing Onerous Amendments (July 23, 2021)
Next week, the U.S. House of Representatives is planning to vote on a “minibus” of appropriations bills for FY 22.  The minibus is expected to include seven of the twelve annual appropriations measures.  Once again the Department of Homeland Security (DHS) appropriations measure is considered one of the more controversial and is not headed for a full House approval next week and therefore our “may” to “shall” language will continue to be in play during a Continuing Resolution (CR) which will likely play out this fall into the holiday season. 

The minibus will include the FY 22 Appropriations for the Department of Labor (DOL).  While we were successful in having onerous provisions stripped from the DOL FY 22 Appropriations last week the Labor Unions have once again pushed Rep. Pocan (D-WI) to be their standard bearer. 

During the hearing last week Rep. Pocan emphasized the need to ban bad actors from participating in the H-2B program, he specifically mentioned employers found guilty of human trafficking.  We actually DO have an agreement there and the H-2B Workforce Coalition worked with champion Rep. Andy Harris (R-MD) to narrowly draft an amendment to address that.  Unfortunately, Rep. Pocan has resorted to the original amendment that is troubling because of it’s scope and it’s departure from focusing on punishing willful bad actors that abuse the H-2B program specifically.  Rep. Pocan is offering an amendment that would ban employers from using the program if it has had an administrative merits determination, arbitral award or decision, or civil judgment, rendered against it in the preceding 3 years for violations of any of the following statutes:

  • National Labor Relations Act
  • Fair Labor Standards Act, Occupational
  • Safety and Health Act 
  • Family Medical Leave Act 
  • Americans with Disabilities Act

There are some other statutes included in the full text (found here) but the above stick out the most.  First, safety is the number one priority for the landscape industry and we take this very seriously but a reality of our line of work is that accidents do happen despite tremendous efforts to avoid.  Should a minor infraction of OSHA ban a landscape company from using the program?  Should a ministerial mistake with FMLA or FLSA (especially during COVID-19) preclude a landscape company from using the program? 

Exacerbating problems further is that an overzealous DOL will be the agency tasked with enforcing this provision if enacted and we know the H-2B program is in DOL’s cross hairs. 

We need a full court press now to stop this amendment from being included in a large en bloc package of amendments which makes it harder to stop.  Now is the time to make sure Democratic Leadership understand that Democrats will not support the Pocan Amendment because it harms their constituents and seasonal businesses. CLICK HERE TO SEND A NOTE TO YOUR REPRESENTATIVE! 

The rules Committee will be making a decision on Amendments Monday afternoon while the minibus will likely be under consideration beginning on Wednesday. 
H-2B Update- Legislation to Move Landscape from H-2B to H-2A  Introduced (July 23, 2021)
On Thursday, Senators Graham (R-SC) and Manchin (D-WV) introduced legislation to reclassify many H-2B industries as “agriculture” allowing those industries to be eligible for the uncapped H-2A program.  Specifically, for the landscape industry the language would define the following as “agriculture”: 
“labor related to the cultivation, installation, establishment and maintenance of horticultural commodities without regard to commodity source or location” 
This is not the first time horticulture has been considered for H-2A eligibility but this is the first time that the definition has included “maintenance” to better encompass the majority of landscape services that use the H-2B program.   Tying the landscape industry to the agriculture industry has some significant strategic advantages for the landscape industry not only for H-2B cap relief but for other environmental and labor policies that NALP continues to advocate for on behalf of the industry.  
Other industries that would reclassify include:
  • Seafood 
  • Equine 
  • Apple picking/pressing for cider 
NALP has long supported redefining any H-2B industry to H-2A because that automatically moves those redefined industries outside of the scope of the H-2B program and theoretically lessens the industries we compete with for H-2B visas.
The H-2A program, while uncapped, does have some additional hurdles including a requirement to provide housing and a wage structure that is similar to the prevailing wage but slightly different.  Additionally, there remains many hurdles to reclassifying the largest user of the H-2B program to an uncapped H-2A program we may be picking fights with some new enemies while needing to shore up support from new allies. 
NALP has been working closely with the Seasonal Employment Alliance (SEA) to have this legislation introduced.  We continue to believe that we want to have as many options on the table to find both short and long term cap relief and while the Returning Worker Exception Act of 2021 remains NALP’s first priority we are very pleased that this important legislation has been introduced in the Senate. 
Senate Republicans Block Infrastructure Bill but Talks Continue (July 23, 2021)
On Wednesday, Senate Republicans blocked an effort to begin debate on bipartisan infrastructure deal, but lawmakers said they expected to close in on a final agreement by early next week. The vote failed, with 49 in favor and 51 against, short of the 60 needed to open debate.  Majority Leader Chuck Schumer switched his vote to no, which he said gave him the option to bring the bill up again.  The infrastructure deal includes health care, education, antipoverty and climate change provisions, among others.   
Senate Majority Leader Chuck Schumer has further vowed that the Senate would move forward on a budget before the August recess.  But the Wednesday deadline is likely to slip, in part because the $3.5 trillion proposal’s future is tied closely to the bipartisan negotiations.  Many House Democrats had hoped to see action on the bill before the lengthy recess begins; however, they acknowledged that they will likely need to return to Washington mid-August to vote on the budget blueprint — and potentially the Senate’s bipartisan infrastructure deal, should one be reached. 
On Wednesday night, President Biden said he remained confident that the Senate will vote next week to move forward with consideration of the bill.  “I think we’re going to get it done,” Mr. Biden said during a CNN town hall in Cincinnati, Ohio.  Mr. Biden said Wednesday’s failed procedural vote was irrelevant. 
NALP will continue to monitor the talks and the infrastructure bill once one is reached.  We will provide updates if and when necessary.  
Labor Department Proposes Rule Implementing Executive Order Increasing Minimum Wage for Workers on Government Contracts (July 23, 2021)
On July 22, 2021, the U.S. Department of Labor announced a proposed rule to implement Executive Order 14026, Increasing the Minimum Wage for Federal Contractors, signed by President Biden on April 27, 2021.The regulation will increase the minimum wage for workers performing work on or in connection with federal contracts to $15 per hour beginning January 30, 2022. The regulation will eliminate the tipped minimum wage for federal contract workers by 2024 and index the minimum wage to adjust to inflation. The proposal applies to “new contracts” entered into after January 30, 2022.  However, it also applies to extensions or renewals of existing contracts or contract-like instruments and exercises of options on existing contracts. This rule also includes outfitters and guides on federal lands, revoking a May 2018 executive order from President Trump.