[Blogger's Note: Today's blog comes from an erstwhile Washington insider, Leon Sequeira, a former Assistant Secretary of Labor for Policy at the U.S. Department of Labor, who offers a view beyond the ken of most business immigration lawyers, including myself.
Leon's topic is the arcane and dense subject of the H-2B visa category for skilled workers in short supply (proven through a labor market test) whose prospective job will be seasonal or "temporary." U.S. Citizenship and Immigration Services says a job is temporary if it involves "a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need." H-2B workers must also be coming "temporarily" to the U.S. (meaning that s/he can establish the intent to return to his/her permanent residence abroad). Moreover, not every foreign citizen can obtain an H-2B visa; rather, the individual must be a citizen of one of an alphabet soup of countries, ranging from Argentina to Vanuatu.
Leon also represents a group of plaintiffs in a pending suit against the DOL challenging its administration of the H-2B visa program.
Because he knows whereof he speaks, this post is a must read for anyone wanting a clear understanding of how the Executive Branch can reap chaos when it builds an immense regulatory superstructure to interpret spare legislative text and regulate the U.S. economy. The law of unintended consequences is thus on full display.]
The Obama Administration's New Temporary Worker Rules
By Leon Sequeira
We’ve all heard lots of happy talk over the past few years from the Obama Administration about the need for comprehensive immigration reform. Regular readers of this blog are no doubt familiar with the President’s platitudes concerning his desire to do something about the undocumented and our broken guestworker programs. After three-plus years, however, many are left wondering where and when we’ll actually see some action. Lost in all the focus group-tested talking points and splashy videos on the White House website, touting a commitment to fixing our immigration system, is the fact that one of the President’s cabinet secretaries has been quite busy implementing immigration reform – a very troubling version of immigration reform.
On January 21, the Department of Labor released a massive 145-page revision of the H-2B temporary non-agricultural worker program regulations that will dramatically increase the bureaucracy, complexity, and cost of the program. This so-called “reform” follows closely on the heels of DOL’s revisions last year to the regulations describing the process for calculating wage rates in the H-2B program. Taken together, the two regulatory packages look a whole lot like a comprehensive effort to destroy a guestworker program.
The H-2B program enables employers to hire foreign workers to fill relatively lower-skilled temporary or seasonal non-agricultural positions when U.S. workers will not take the jobs. H-2B should not be confused with the H-2A program, which applies to agricultural workers and which is also under attack by DOL, but that is a post for another day. H-2B should also not be confused with the H-1B program for specialty (often high-tech) occupations.
The H-2B program is capped at 66,000 visas annually, but in the past couple of years fewer than 48,000 visas per year have been claimed. It should come as no surprise that with decreased business activity during the great recession, many employers need fewer employees to keep up with customer demand. But even with an average national unemployment rate of nearly 9% over the past year, there continue to be numerous temporary and seasonal jobs that U.S. workers simply do not want to perform. H-2B workers often fill these jobs and by doing so enable businesses across the country to flourish and employ scores of U.S. workers in other positions.
DOL’s culminated its first assault on the H-2B program in 2011 when the agency decided to dramatically accelerate implementation of the new wage regulations and require employers to immediately increase H-2B wage rates by, in some cases, more than 120%. DOL launched this broadside based on an illogical premise that the wages being paid by H-2B employers, which are set by DOL to ensure no adverse effect on U.S. workers, were somehow causing wage depression. Never mind that DOL produced no evidence of wage depression caused by H-2B workers. Nor did DOL explain how a mere 48,000 H-2B workers, spread across dozens of occupations from coast to coast could possibly result in wage depression in an economy that employs nearly 140 million people.
Perhaps most glaring was DOL’s failure to explain why, even if wage depression did exist, it would not be more likely to be the result of some 10 million undocumented in the workforce, rather than the 48,000 H-2B visa holders who were in the country legally working (at DOL-mandated wages) for only a few months at a time. Just a few years ago in another rulemaking, DOL reached that precise conclusion: to the extent any wage depression could be said to exist, it is likely the result of the undocumented who frequently toil in an underground economy.
In stark contrast to DOL’s current baseless assertions, economic studies have found that rather than depressing wages, H-2B employment is associated with rising wages, and perhaps just as importantly, job growth.
Facing the ruinous costs that would be imposed by DOL’s 2011 regulations, several H-2B employers and industry trade associations filed two separate lawsuits in September (one in Louisiana and one in Florida) against DOL in an effort to block the wage regulations from taking effect. It turned out that employers were not the only ones outraged by DOL’s actions. Before either court could rule on the employers’ requests for an injunction, Congress entered the fray. Democrats and Republicans, in a rare show of bipartisanship, joined together to stop the DOL regulations for the remainder of the fiscal year with an amendment to the agency’s 2012 funding bill. Barbara Mikulski of Maryland, one of the Senate’s most liberal members, led that successful effort. As a result of the political fallout, and in a major rebuke to his own Department of Labor, the President was left with no real option other than to sign the legislation into law.
Undaunted, however, DOL continues its White House-approved assault on the H-2B program with the latest round of regulations scheduled to take effect on April 23. Congress is watching and over the past couple of weeks, the Labor Secretary has been aggressively questioned during budget hearings about the rationale for Department’s actions. Largely dissatisfied with her answers, members of both the House and Senate have now introduced resolutions disapproving of the regulations. Unless these latest regulations are blocked by a federal judge or by Congress, 2012 could mark the beginning of the end not just for the H-2B program, but also for a number of U.S. businesses that rely on H-2B workers.
As the old saying goes, actions speak louder than words. Unfortunately, the Administration’s troubling actions thus far implementing immigration reform are a long way from the President’s soaring rhetoric on the topic. This disconnect should give pause to both employers and immigration practitioners who believe we can’t wait for this President to act.
Leon R. Sequeira is senior counsel in the Washington, D.C. office of Seyfarth Shaw LLP where he advises clients on a range of labor and employment regulatory and legislative matters. Mr. Sequeira is the former Assistant Secretary of Labor for Policy at the U.S. Department of Labor and has extensive experience with the Departmentís enforcement agencies.