H-2B Supplemental Visa Rule Delayed Due to Economic Conditions
Earlier this week the anticipated H-2B Supplemental Rule to release 35,000 additional visas moved over to the Office of Information and Regulatory Affairs (OIRA). OIRA is the last stop before rules become finalized, and while it can take up to 90 days, internal sources indicated the rule was going to be published by early next week.
The impacts of the COVID-19 pandemic are unprecedented, and how this has effected the economy is far reaching. Over 6.6. million American’s filed for unemployment last week and the report for this week is expected to be worse. The rapid escalation of the unemployment rate feeds arguments against guest worker programs, cue Fox News and Breitbart. We will not provide links which only promote further traffic to these misinformed reporters, but H-2B took some significant attacks from our opponents in the media this week. Which we believe lead to the following DHS tweet on Thursday.
Homeland Security (@DHSgov): To clear up various misreporting – DHS’s rule on the H-2B cap is on hold pending review due to present economic circumstances. No additional H-2B visas will be released until further notice. Per the statute, H-2B allocations are set in consultation with @USDOL
This decision is not a surprise to NALP considering the economic impacts of COVID-19 but it is still a decision we feel is unwise to the health of the economy and another disappointing development on H-2B and the landscape industry.
There remains the opportunity for the Administration to release the supplemental visas but it is unlikely to occur during mass “shelter-in-place” orders throughout the 50 states. We will continue to focus on pressuring the Administration and Congress when it is most appropriate. In the meantime we will focus on transferring expiring H-2A and H-2B visas to the landscape industry along with working with existing April 1 H-2B visa holders that currently cannot utilize them and facilitate transfers to the landscape industry.
H-2B GAO Report Released
On Wednesday, The Government Accountability Office just released its report entitled, “H-2B VISAS: Additional Steps Needed to Meet Employers' Hiring Needs and Protect U.S. Workers.” NALP was heavily involved in the report to provide information while also working in conjunction with the Texas Nursery and Landscape Association to identify additional information and access to members for interview.
The GAO is a non-partisan entity that provides these reports at the request of Congress. This report will now be used by NALP to assist Congress and the Administration to make much needed changes to the H-2B program.
Here is a summary of the report:
The report is based on interviews and surveys of H-2B employers and case studies of four industries in 5 counties:
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Construction in Maricopa County, Arizona;
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Hospitality in Mackinac County, Michigan (hotels), and Barnstable County, Massachusetts (restaurants);
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Landscaping in Dallas County, Texas; and
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Seafood processing in Dorchester County, Maryland.
Based on an analysis of DHS and DOL data, GAO found that: “counties with H-2B employers generally had lower unemployment rates and higher average weekly wages than counties that do not have any H-2B employers.43 Specifically, the approximate 700 counties with H-2B employers had, on average, unemployment rates that were about 0.4 of a percentage point lower than those in counties without H-2B employers.44 Moreover, lower unemployment was consistent in every month from fiscal years 2015 through 2018, regardless of seasonality (see fig. 5). Further, average weekly wages in counties with H-2B employers were higher by about $113 per week r than in counties without H-2B employers (average weekly wage for counties with H-2B employers is $866 and for counties without H-2B employers is $754).45 This relationship held for every quarter from fiscal years 2015 through 2018 (see fig. 6).”
The report concluded with the following 5 specific recommendations for DHS and DOL:
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The Director of United States Citizenship and Immigration Services should work with the Assistant Secretary for the Employment and Training Administration to assess options for changing the H-2B visa program and, as warranted, implement changes or submit proposed legislative changes to Congress. DHS and DOL could consider options included in their June 2019 report to Congress and identify those that may be implemented cost effectively and without adversely affecting U.S. workers. (Recommendation 1)
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The Assistant Secretary for the Employment and Training Administration should work with the Director of United States Citizenship and Immigration Services to assess options for changing the H-2B visa program and, as warranted, implement changes or submit proposed legislative changes to Congress. DOL and DHS could consider options included in their June 2019 report to Congress and identify those that may be implemented cost effectively and without adversely affecting U.S. workers. (Recommendation 2)
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The Director of United States Citizenship and Immigration Services should work with the Assistant Secretary for the Employment and Training Administration to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide when given this authority by Congress and, as warranted, implement an approach that considers such trends. (Recommendation 3)
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The Assistant Secretary for the Employment and Training Administration should work with the Director of United States Citizenship and Immigration Services to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide when given this authority by Congress and, as warranted, implement an approach that considers such trends. (Recommendation 4)
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The Assistant Secretary for the Employment and Training Administration should take steps to target its audits of H-2B employers to employers with the highest likelihood of violating program requirements; such steps could include moving ahead with developing a system for identifying trends in H-2B employer audit outcomes. (Recommendation 5)
Fast facts and highlights can be found at https://www.gao.gov/products/GAO-20-230
Read the full report
