H2B Grassroots action 

This page is no longer active. Current information can now be found on the Legislative & Advocacy Blog (LAB) or on Twitter @cogreennow.

[June 8, 2016 at 9:30 AM] A few moments ago, the House Appropriations Committee released the FY17 Draft of the Department of Homeland Security bill.  The bill does NOT include a returning worker exemption.  We need your help to get the provision included in the bill through an amendment.

If your Representative is on the committee list below or you have a relationship with anyone on the list, please call and urge him or her to VOTE YES ON AN H-2B RETURNING WORKER AMENDMENT THAT MAY BE OFFERED DURING THE FULL COMMITTEE MARKUP NEXT WEEK! The amendment would be a one-year extension of the current H-2B returning worker exemption through the FY17 Department of Homeland Security Appropriations Bill. You can reach you Representative through the Capitol Switchboard at 202-225-3121.

Please pass along any feedback about whether or not the Member will vote for the amendment.

The House Appropriations Committee
(note that Democratic Members are in Bold Italics

Thank you.

H-2B Workforce Coalition Co-Chairs:

• Laurie Flanagan, Representing AmericanHort and the National Association of Landscape Professionals
• Gregg Hartley, Representing the Outdoor Amusement Business Association
• Brian Crawford, American Hotel and Lodging Association

H2-B program updates are now included in the Legislative & Advocacy Blog (LAB).

[Last updated 5/18/15]

If who were unable to make either of the webinars last week, you can view or download slides from the presentations here .

Also, DOL has updated its website related to the new rules to include a chart comparing the old process with the new rules, as well as several fact sheets on key components of the rules. This information can be found at: www.dol.gov/whd/immigration/H2BFinalRule/.

Congressman Andy Harris (Maryland) is drafting legislation that would fix all of the issues in the rules. It is expected to be introduced in the next week or so. We will keep you posted.

Please continue to call, write and tweet your Senators and Members of Congress stressing the problems you are having with the H-2B program. Don’t forget to tweet at your elected officials. Some suggested tweets are:

• Congress, please pass an H-2B returning worker exemption today #saveH2B
• I needed my H-2B workers on _____date and I still don’t have workers. Congress pass a returning worker exemption #saveH2B
• The new H-2B rules are unworkable #save H2B

[Updated 5/13/15]

ALCC members have questions about the Affordable Care Act and how it interacts with the H-2B visa program. That response is simple: there is no difference. H-2B visa employees are treated the same as an American worker in terms of the law and the state exchanges. To read more on this topic, visit www.alcc.com/seasonal-workers.

[Updated 5/6/15]

The Office of Foreign Labor Certification has created a dedicated web page for the H-2B 2015 Interim Final Rule to provide assistance to stakeholders. The web page contains program details with links to Frequently Asked Questions, the iCERT System for electronic filing, the Forms page and more. To access the page, please click here. 

[Updated 4/29/15]

The H-2B rules promised by end of month are available at the following links. They become effective today.

Comprehensive IFR: https://www.federalregister.gov/articles/2015/04/29/2015-09694/temporary-non-agricultural-employment-of-h-2b-aliens-in-the-united-states

Wage Final Rule: https://www.federalregister.gov/articles/2015/04/29/2015-09692/wage-methodology-for-the-temporary-non-agricultural-employment-h-2b-program

So far, Senator Bennet has asked for comments on how these rules will affect member businesses. If you respond to him, please also email that response to your House Representative and to Senator Gardner. They need to continue to hear from us.

Here’s a short summary of the two rules:

Final H-2B Wage Rule

• Will become effective upon publication in the Federal Register on April 29.
• Will apply to all new prevailing wage requests submitted on or after the effective date of the rule. Any prevailing wage request submitted before the effective date of this rule and pending at the time this rule is published will be processed under the 2013 interim final wage rule.
• In the absence of controlling collective bargaining agreement or wages determined by professional sports league regulations, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area derived from the Bureau of Labor Statistics Occupational Employment Statistics survey, unless the H-2B employer meets the conditions for requesting that the prevailing wage be based on an employer-provided survey.
• Wage surveys may be used only if they meet the following criteria:

o The survey was independently conducted and issued by a state, including any state agency, state college, or state university;
o The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC;
o The job opportunity is not included within an occupational classification of the SOC system; or
o The job opportunity is within an occupational classification of the SOC system designated as an “all other” classification.

• Sets the following methodological standards required for employer-provided surveys that meet the criteria above:

o Require the survey to include the mean or median wage of all similarly employed workers in the area of intended employment, regardless of skill level, experience, education, and length of employment;
o Require the survey to make a reasonable, good faith attempt to contact all employers employing workers in the occupation and geographic area surveyed or conduct a randomized sample of such employers;
o Require the survey to be independently conducted and issued by a state and approved by a state official or, in the limited circumstances where the OES wage does not provide adequate data for the occupation or geographic area, a bona fide third party;
o Require the survey to include at least thirty employees and three employers in a sample;
o Require that surveys include all types of pay set out in the OES survey instrument, including payment of piece rates or production bonuses in the wages reported;
o Require the wages reported in the survey be no more than twenty-four months old;
o Require that that surveys be conducted across industries that employ workers in the occupation; and
o Require that employers submit a new Employment and Training Administration (ETA) Form ETA-9165, which permits DOL to better assess the validity and reliability of the survey.

• Does not permit use of the wage determinations issued under the Service Contract Act or the Davis Bacon Act as sources to set the prevailing wage in the H-2B temporary labor certification context.

Comprehensive H-2B Interim Final Rule

• Becomes effective upon publication in the April 29 Federal Register.
• Comments are due 60 days after publication in the Federal Register(60 days after April 29).
• According to DHS ad DOL, “This interim final rule is virtually identical to the 2012 final rule that DOL developed …” The 2012 rule has not been implemented due to a federal court order.
• A chart comparing the provisions of the 2012 final rule to the 2008 regulations that have been governing the program can be found at: http://www.dol.gov/whd/immigration/H2BFinalRule/H2BSideBySide.htm
• Some of the key provisions of this new interim final rule include:

o Requires expanded recruitment such as the possible use of an electronic job registry and contact with community-based organizations.
o Requires the job offer to remain open to U.S. workers until 21 days before the employer’s start date of need.
o Reverts back to the compliance-based certification model that had been used prior to the 2008 final rule.
o Increases the number of hours per week required for full-time employment from 30 to 35 hours.
o Requires that U.S. workers in corresponding employment receive the same wages and benefits as the H-2B workers.
o Requires that employers guarantee employment for a total number of work hours equal to at least three-fourths of the workdays in specific periods for both H-2B workers and workers in corresponding employment.
o Requires employers to pay visa and related fees of H-2B workers
o Requires employers to pay the inbound transportation and subsistence costs of workers who complete 50 percent of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period.
o Requires employers to disclose their use of foreign labor recruiters in the solicitation of workers; to provide workers with earnings statements, with hours worked and offered and deductions clearly specified; to provide workers with copies of the job order; and to display a poster describing employee rights and protections.
o Defines temporary need, except in the event of a one-time occurrence, as 9 months in duration, a decrease from the 10-month limitation under DOL’s 2008 rule.

And finally, here is a statement issued by House Judiciary Chair Bob Goodlatte about the regulations:

April 28, 2015

Goodlatte Statement on Obama Administration’s New H-2B Regulations

Washington, D.C. – House Judiciary Committee Chairman Bob Goodlatte (R-Va.) issued the statement below regarding the Department of Homeland Security and Department of Labor’s new regulations for the H-2B seasonal guestworker program.

“The Obama Administration had the opportunity to issue user-friendly regulations for the thousands of American employers who use the H-2B program, but it knowingly failed to do so. The new regulations issued by the Obama Administration are overly burdensome for the small and seasonal businesses that play by the rules and use this guestworker program to hire a legal workforce. By keeping the Department of Labor’s heavy hand in the process, employers will face more red tape and higher costs when using the program. The House Judiciary Committee is closely examining this issue and the impact of the Administration’s new regulations.”

Background: Earlier this month, Chairman Goodlatte sent a letter signed by 36 Members of Congress to Department of Homeland Security (DHS) Secretary Jeh Johnson asking that the Obama Administration’s new regulations for the H-2B seasonal guestworker program be user-friendly for the thousands of businesses that rely on the program and protect American workers. The H-2B guestworker program is used by American employers to hire foreign workers for temporary and seasonal work, such as forestry, seafood processing, and other industries. On March 4, 2015, a federal district court ruled that the Department of Labor lacked the authority under the Immigration and Nationality Act to issue regulations for the H-2B program. The new regulations can be found here and here.

###

[Updated 4/16/15] Florida Federal Court Extends Stay of H-2B Rule Injunction Until May 15, 2015 (The National Law Review)

[Updated 4/13/15] Three ALCC members, along with Executive Director Kristen Fefes, are going to Washington tomorrow (4/14/15) and Wednesday to lobby for H-2B with other seasonal businesses across the country.

You can support them by virtual lobbying from your desks as well -- and keep up your tweeting, emailing and calling on the H2B issue. The delegation plans to meet with 6 of 9 of Colorado's Congressional delegation: Bennet, Gardner, Buck, Polis, Coffman, Tipton. You can encourage them to take action after the meeting on Wednesday. Tweet about the need for H-2B relief using the hashtag #saveH2B and direct your comments to your Senators and Member of Congress. You can tweet about the need for immediate H-2B cap relief, making sure that an upcoming interim final rule on the program is not used to place new burdens on employers, or the direct impact of being shut out of the program or delays on your business.

Find Kristen on Twitter @kfefes and she'll retweet while in Washington.

View or download the talking points the delegation is using here.

View/download an H-2B legislative/regulatory timeline here.

View/download the list of congressional contacts here.

Finally, below are two articles of interest:
The Costs of a Broken Immigration System on American Business (insideronline.org)
Obama’s Visa Double Game: Siding with unions instead of workers trying to follow the law. (Wall Street Journal)

[Updated 4/8/15] From the Circuit Court in Florida today: Judge Rodgers has issued a brief order which seems to allow DOL to close down its role in the H-2B application processing and move forward with what is likely to be extremely adverse joint DOL/DHS regulations by the end of this month.

Check this page, as we will update as we learn more.

[Updated 4/7/2015] There is an H-2B fly in next week in Washington, and ALCC is hoping that some members will attend. If you can’t, please keep up your grassroots pressure with calls, emails, tweets and so forth.

Thank you very much for everyone’s continued engagement in our H-2B advocacy efforts. Your voice is more important that ever! As you know, the H-2B cap for the second half of fiscal 2015 was reached on March 26, leaving thousands of H-2B employers in the lurch this year.

We need Congress to pass emergency cap relief such as the returning worker exemption that was in place about a decade ago. Currently, the only workers exempt from the cap are as follows:

• H-2B workers in the United States or abroad who have been previously counted towards the cap in the same fiscal year; (an earlier announcement suggested returning workers from the past three years are exempt from the cap, but this is not the case)
• Current H-2B workers seeking an extension of stay;
• Current H-2B workers seeking a change of employer or terms of employment;
• Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
• H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of Northern Mariana Islands and/or Guam.

Please continue to reach out to your Senators and Members of Congress and ask them to work pass an emergency H-2B returning worker exemption. Please also ask them to continue to reach out to the Department of Homeland Security to ensure that the upcoming DHS-DOL interim final rule will not be used as an opportunity to impose burdensome new requirements on seasonal employers.

We need to ensure that none of the 2012 H-2B program rule (already blocked by the court) provisions are included in the new interim rule. The blocked 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 have involved labor unions in the hiring process and required employers to pay transportation and subsistence costs for U.S. workers who work at least 50% of the season. In addition, the rule included provisions that would have require employers to pay workers with “corresponding employment” duties similar wages.

What Can You Do?

Call our two Senators and Member of Congress and ask them to pass an H-2B returning worker exemption and work with DHS to ensure that upcoming DHS-DOL interim final rule will not be used as an opportunity to impose burdensome new requirements on seasonal employers. With Gardner and Bennet and the House folks who sent/signed the letter to DHS encouraging the resumption of processing, please don’t forget to say thank you and encourage him or her to keep up the fight.

• Ask your Representative and Senators pass an H-2B returning worker exemption from the cap.
• Ask your Representative to cosponsor H-2B legislation being drafted by Rep. Harris that will provide reforms to the program and end the constant litigation and uncertainty associated with the program.
• Come to Washington, DC on April 15 and participate in H-2B Advocacy Day. Meet with your elected officials and explain the importance of a functional and predictable H-2B program to your business. I am going and would really love to have you attend as well. There’s a week to get plane tickets still! 
• Continue the dialogue on Twitter using the #saveH2B. Continue to direct your tweets to your Senators, Representatives, DOL and DHS. Some suggested tweets are below.
• Congress keep the H-2B program operational. An interim final rule must not impose more burdens on seasonal employers. #saveH2B
• Support legislation to reform the H-2B program and #saveH2B.
• Reinstate the H-2B returning worker exemption and #saveH2B.
• Save small and seasonal businesses. Congress pass an H-2B returning worker exemption! #saveH2B
• I am committed to a legal workforce. Congress must pass an H-2B returning worker exemption so I can hire legal seasonal workers! #saveH2B
• Fix the H-2B program today! America needs seasonal workers. #saveH2B
• Save American jobs. Pass legislation today to renew the H-2B returning worker exemption! #saveH2B
• Company Name will lose $________ without H-2B workers. Congress pass a returning worker exemption! #saveH2B
• Tweet a picture of your unused equipment and say American businesses and American workers need H-2B workers today. #saveH2B
• Create your own tweet that tells your story and include #saveH2B.
• Ask your employees to tweet about the importance of H-2B workers to their jobs #saveH2B

[Updated 3/17/15] DHS resumes processing.
First the good news – well, actually there is no bad news: USCIS announced that it will start processing H2B visas. Premium processing is still a question. Here’s the announcement. Here’s a followup story from the Denver Post.

Bennet letter.
Senator Bennet's letter to the White House was a joint effort between the Senator’s office, ALCC, Colorado Ski Country and the Colorado Hotel & Lodging Association. His staff called ALCC to thank us for all the signatures. 

House Committee on Labor and HHS transcript
During the House Labor & HHS budget hearing, there was a lot brought up with Secretary Perez about the program. You can view the hearing online.

Also, see the Bloomberg analysis. This is good info.

What’s next?
What we’re watching most closely is the rule that DOL and DHS will issue by April 30.  We need to ensure that none of the 2012 H2B program rule (already blocked by the court) finds its way into that interim rule. We’ll continue to keep you informed.

[Updated 3/12/15] Few updates on H2B as of today. There is some serious movement on the hill – all thanks your calls, tweets, emails and so forth. KEEP IT UP. Senator Gardner sent a letter today to DOL and DHS. Senator Bennet is also gathering data for some action today & we’re working with the CO hotel & restaurant associations and Ski Country on this in general.

Also, and more urgently, both Rep. Andy Harris (R-MD) and Senator Barbara Mikulski (D-MD) are working on letters to the Administration to urge the immediate resumption of H-2B processing. We will send the final version of these letters as soon as they are available. The turnaround on getting these letters to the Administration will be extremely quick so, please call your elected officials now (again). Specifically, we need you to do the following:

• Call and email your Representative’s office and ask him or her to sign onto the H-2B letter that Rep. Harris is drafting. Offices that are potentially interested in signing the letter should email Rep. Andy Harris’ office at: [email protected]. 
• Call and email both Senator Gardner and Senator Bennet& ask them to sign onto the H-2B letters that Senator Mikulski is drafting. Copies are attached. Offices that are potentially interested in signing the letter should send an email to: [email protected]. 
• When you call Sen. Gardner’s office, thank him for the letter he wrote this morning to DOL and DHS. If needed, clarify that we do want him signing this one to the administration.

The list of contact people for each Colorado congressional office can be found here.

You can keep up-to-date on this topic by following Kristen Fefes on Twitter (@kfefes).

Write, Call and Tweet Today to Save the H-2B Program!

Please contact our Senators and your Member of Congress and ask for them to compel DOL and DHS to immediately resume processing H-2B prevailing wage determinations and labor certifications. It is essential that you act, even if you have your workers for this year, because you could be impacted next year.

On Thursday, the Department of Labor (DOL) announced that it will no longer accept or process requests for H-2B prevailing wage determinations or labor ’s Citizenship and certifications in light of a March 4 decision in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). Yesterday morning the Department of Homeland Security's (DHS)Citizenship and Immigration Services (USCIS) followed suit. These announcements essentially shut down the H-2B program for any company that has not completed the H-2B process.

While the federal district court affirmed the lack of authority for DOL to issue unilateral rules, the court order in no way required DOL to suspend processing prevailing wage determinations or labor certifications as part of its role as a consultant agency to the Department of Homeland Security (DHS). Further, the law and DHS regulations require DOL to perform these functions. DOL had provided these services to DHS without a rule making for over 40 years and should continue to do so even in light of the court order. In addition, the court decision did not require DHS to suspend H-2B processing.

Congress needs to hear from you today to revive the H-2B program and save the spring, summer and fall for seasonal employers.

What can you do?

• Call Colorado’s two Senators and your Member of Congress and ask them to call DOL and DHS and demand that the Departments immediately resume processing H-2B prevailing wage determinations and labor certifications. A list of our delegation can be found here; immigration staffers are noted on the document.
• Set up an appointment with your Elected officials while they are in their home districts next week. Explain the importance of the H-2B Program to your business and the need for DOL and DHS to resume processing H-2B actions. When possible, coordinate with other H-2B employers in your area or bring some customers or suppliers with you.
• Ask your employees to contact their elected officials as well and explain what the H-2B program means for their jobs.
• Tweet about the need for Congress to act for and for DOL and DHS to immediately address the H-2B Program using #saveH2B. Direct the tweets to your two Senators, your Member of Congress and @USDOL and @DHSgov. You can find the twitter address for your Senators and Representative at the links below.
• https://twitter.com/gov/lists/us-senate/members
• https://twitter.com/verified/lists/us-congress/members

Here are some sample tweets:

• Save the spring and summer! DOL and DHS must resume H-2B processing! #saveH2B
• Save small and seasonal businesses. DOL and DHS must resume H-2B processing! #saveH2B
• I am committed to a legal workforce. DOL and DHS must resume H2B processing so I can hire legal seasonal workers! #saveH2B
• Fix the H-2B program today! America needs seasonal workers. #saveH2B
• Save American jobs. Revive the H-2B program today! #saveh2b
• Save American jobs. Every H-2B worker supports about 4 American jobs. #saveH2B
• Company Name will lose $________ without H-2B workers. DOL and DHS must resume H-2B processing! #saveH2B
• Tweet a picture of your unused equipment and say American businesses and American workers need H-2B workers today. #saveH2B
• Create your own tweet that tells your story and include #saveH2B.

If you don't have a Twitter account, go to https://twitter.com/signup. Enter your name, your email address, and a password. On the next page, select a username--type your own or choose one that Twitter has suggested. Click "Create my account." (You may be asked to complete a captcha to let them know you are human.) Next, you just need to begin finding and following accounts that interest you. Following others means you are subscribing to their tweets. Once your Twitter account is established, log in and search for Twitter handle#saveH2B and click "Follow" to see what your colleagues are saying. It's that easy!

Please act today. The future of the H-2B program literally depends on Congress hearing from you and every H-2B user in the country!

Previously in H2B news:

The Department of Homeland Security (DHS) announced on Monday that H-2B cap was reached for the first half of fiscal 2015. According to DHS, the Department will reject H-2B petitions that were received after January 26, 2015, and that request an employment start date prior to April 1. The second half cap will likely be released very soon. We need you to weigh in with Congress today, even if you have already got your H-2B workers today.

This announcement follows a December announcement from the Department of Labor that it will 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 that those derived from wage surveys.