Alert: Massive Changes To H-2B Program Hidden In DOL's Proposed 9142B Forms and Appendices

DOL is trying to sneak at least two major changes to the H-2B Program through by amending the program's forms. If adopted, the changes would make the H-2B Program almost unworkable for the landscaping industry.

The Paperwork Reduction Act requires the Office of Management and Budget to approve every government form that requires a member of the public to provide information. DOL forms for the H-2B program are subject to this OMB approval process.

Usually, the review process is non-controversial. Most of DOL's submissions related to the H-2B Program have been approved without change or comment. The reason for the simplicity of the process is that the forms cannot impose new legal obligations and must correctly reflect the law. Given this principle, it is safe to say that few people review proposed changes to government forms and fewer still comment on them.

DOL, however, has broken that trust. On September 7th, DOL proposed adopting three new H-2B-related forms and amending the current ones. This article focuses on the proposed Appendix A and the revised Appendix B.

Appendix A requires an H-2B employer with multiple worksites to list every worksite where H-2B workers will work, even if they are in a single area of intended employment. According to the proposed Form 9142 instructions, a worksite is a "physical location" where work will be performed. DOL presents this form as a service to employers by making it easier to list multiple worksites.

Appendix B are the "attestations." Some of the attestations repeat regulatory language verbatim. Some, however, purport to paraphrase the regulations. DOL explicitly states that one of the purposes for the attestations is enforcement. When the attestations differ from the regulatory text, a question arises as to which statement of the obligation controls. In a 2013 en banc decision, BALCA held that the regulatory text controls.

DOL's Appendix A Threatens To Make The H-2B Program Unusable For Landscapers

By requiring Appendix A, DOL is imposing a de facto requirement that landscapers list every physical location where H-2B work will be performed. This is an impossible burden, even if every location could be foreseen. Even a small residential landscaper will work at hundreds of sites within the same area of intended employment. Every single place with its own address would have to be listed. Even places without an address such as a highway berm would need to be listed. This is a wholly unnecessary burden because so long as the location is within the same area of intended employment, nothing about the terms and conditions of the H-2B employment changes. Moreover, nothing in the 2015 Interim Final Rule imposes such a requirement. Landscapers, who currently constitute the single largest industry group in the H-2B Program, would be driven out.

DOL's Proposed Wage Attestation Misstates The Law And Is Unworkable

Proposed Appendix B contains a long attestation, loaded with time bombs. DOL gives the game away in the first sentence:

The offered wage equals or exceeds the highest of the applicable Federal, State, or local minimum wage, or the prevailing wage determination for the occupation that is issued by the Department to the employer, as reflected on the employer’s approved Application for Temporary Employment Certification, for the time period the work is performed.

The emphasized language is taken from the H-2A regulations. It stands for the idea that if DOL changes the adverse effect wage rate mid-season, the grower will increase wages. The same would go here. There are a couple of glaring problems here. First, the H-2B regulations do not require H-2B employers to pay the prevailing wage in effect "for the time period the work is performed." DOL litigated that issue in the Northern District of Mississippi and won. Second, many industries that use the H-2B program win work through bidding. A wage increase mid-season can impose devastating and irreparable losses on a company by upending its bidding calculations. A landscaping business, for instance, cannot operate with such uncertainty. And, left unsaid, is the issue of advertisement.

If that weren't bad enough, Attestation No. 5 continues:

If, after the issuance of a prevailing wage determination, the Department issues a new or revised prevailing wage determination that is assigned to the employer’s application or certified period of employment, the employer must offer a wage that equals or exceeds the highest of the new prevailing wage or the applicable Federal, State, or local minimum wage, unless notified otherwise by the Department.

This sentence allows DOL to ensure that employers always pay the highest wages possible. Let's say that an employer notices that the prevailing wage has gone down and files a prevailing wage request. A prevailing wage determination is then issued with the lower wage reflecting the prevailing wage "for the time period the work is performed." DOL can cancel that new, valid PWD by notice. This procedure is not provided for in the regulations. What this reveals is DOL's replacement of the original rationale of the H-2B program - ensuring market neutrality - with a new rationale - maximizing income transfers to foreign workers and subsequent transfer payments.

What Next: Submit Comments By November 6, 2018

DOL has not yet adopted the proposed forms. Interested people, especially landscapers, need to be made aware of the threat and need to (1) share information and (2) submit comments. Comments will smoke DOL out and may lead to necessary changes. At a minimum, they will let DOL know that its subterfuge did not succeed.






H-2A - H-2B Must Reads: August 29, 2018

Your Daily Update On H-2A and H-2B Foreign Worker Programs

H-2A

Florida Fruit and Vegetable Association turns 75 this year. Located in the state that is the #1 user of H-2A visas, it’s one of many agriculture groups that help farmers access the H-2A program.  


H-2B

The labor shortage in the landscaping industry is affecting Utah consumers. One landscaping company owner desperate for laborers says, “If you can stand up, you’re hired.”

I-9 Audits and investigations of employers have nearly quadrupled in 2018. Find out more information on how to keep up to date with I-9 regulations here.

This past Tuesday, ICE arrested 150 workers in yet another massive I-9 Audit at a trailer manufacturing company located in Texas.

H-2A - H-2B Must Reads: 8-28-2018

 

 

H-2A

The debate on H-2A visa reforms and H-2C, from a pig farmer’s perspective.

Wisconsin's dairy farmers must navigate how to continue their operations without a sufficient number of foreign workers available. 

Across the country, fruit is rotting off of trees as farm labor shortages continue to rise, the Washington Post reports.

H-2B

Maryland’s crab industry continues to suffer in wake of a limiting foreign-worker visa season.

Government I-9 Audits are surging as businesses continue to be served notices from ICE nation-wide.

Avoiding H-2B Immigration Scams; The Tourist Visa Scam

     Many H-2B workers are leaving the United States, obtaining tourist visas (B-2), and returning to work for their employers. H-2B employers should know that this is a scam that might land them in serious legal trouble.

     Tourist visas do not allow the foreign national to work legally in the United States. Employing a worker on a tourist visa may violate any number of immigration laws. What’s worse is that the worker needs to lie about the purpose of his “visit” and that may constitute visa fraud and a whole host of related criminal offenses. This is a problem for the H-2B employer because the government might view this as a conspiracy – yet, another crime.

     Wendel Hall, a prominent Washington, DC-based H-2B lawyer, warned employers by saying, “Visa fraud is a serious crime carrying serious penalties. Investigating and prosecuting this crime is a priority of this Administration. It is always best to stay well-within the bounds of the law.” 

     The best way to avoid trouble is to get good legal advice upfront. You may find out that the law provides a legal way to employ a particular worker or that a planned course of action is very unwise.  The Hall Law Office specializes in immigration issues related to the H-2B Program and can be reached at (202) 661-2173 or wendel@halllawoffice.net.

 

 

 

Your H-2A and H-2B Bulletin - Aug 22, 2018

H-2A

Easing The Burden On America’s Farmers

This article discusses the upcoming changes to foreign worker visas that will soon be debated  both in the House and Senate. Some of these changes to the H-2A visa system would allow farmers to apply for year-round workers rather than only seasonal and,  require  all employers use E-Verify to check the eligibility of prospective employees to work in the U.S.

DOL Obtains Injunction For Alleged H-2A Visa Abuse For The Second Time

The U.S Department of Labor received a preliminary injunction for the second time in itshistory. Said injunction is against an employer who is alleged to have not provided sanitary and safe housing for his employees. It is vital that all employers who rely on H-2A visas stay up to date with the DOL’s strict housing regulations for foreign workers. To find out more information, feel free to contact our office at (202)-661-2173 or via email at: wendel@halllawoffice.net and samantha@hallawoffice.net.

H-2B

Southeastern Provision Employer Pleads Guilty To One Count of Employment Of Unauthorized Foreign Workers

The owner of a meatpacking plant in Grainger County, Tennessee has plead guilty on charges of tax evasion and  employing undocumented foreign workers. Said owner has agreed to pay restitution to the IRS for a whopping $1,296,183. It is important to stay up to date and consistent with H-2B regulations so as to not be blindsided by possible charges or fines from the DOL. For more information on how to avoid these fines, contact our office at (202)-661-2173 or via email at: wendel@halllawoffice.net and samantha@hallawoffice.net.

 

Daily H-2A and H-2B News Alert + August 2, 2018

Texas Shrimp Producers Facing Another Worker Shortage

 

Yet another industry has taken a direct hit this season as a result of the  cap placed on H-2B visas. Even though Congress increased the number of foreign worker visas available this past season, the USCIS’ lottery visa system has resulted in several industries being affected at local and regional levels. Industry-wide, shrimp producers could be losing as much as millions of dollars a day due to a lack of crews and laborers willing to work. To be sure to stay up to date with H-2B visa regulations or changes, visit the USCIS website, or feel free to contact our attorneys at (202)-661-2173.

H-2A

Santa Maria Valley City Officials Work To Provide Housing For Migrant Farm Workers

In Santa Maria Valley, CA, city officials passed an ordinance which banned the housing of more than six H-2A workers in single-family homes, and are now working with the community of local farmers to build adequate temporary housing for these workers. This outreach has benefitted both farmers, who rely on migrant workers every summer, and the workers themselves, who under H-2A regulations must be provided with safe housing and transportation to and from work sites. To find out more about specific requirements of H-2A visas, visit the Department of Labor website or contact our office at (202)-661-2173.

Farm Workers Continue To Be In Short Supply as Local Farmers Struggle

Farmers in Washington and California are desperate to find labor workers as the summer season reaches its peak. For industries such as dairy, farmers have been struggling year long to make labor supply meet their demand. While both the House of Representatives and Congress continue to debate how to resolve the issue of labor shortages, be sure to keep up to date with the Hall Law Office Daily News Alerts, and with all H-2A visa application deadlines.

 

 

H-2A and H-2B Daily News Alert

 

Department of Labor Allegedly Finds Hiring and Pay Violations at North Florida Cabbage Farm

A cabbage farm in northern Florida was charged with several H-2A visa violation by the Department of Labor (DOL), including failure to reimburse workers for their travel time and failure to meet housing safety requirements. The business now owes almost $20,000 in back wages to its employees, and over $5,000 in civil penalty fines to the U.S Department of Labor Wage and Hour Division (WHD). Any business participating in the H-2A visa program can avoid these penalties by keeping up to date with DOL regulations, and seeking timely legal advice to prevent problems from ever arising.

Trump Pushes Immigration Measures After Shutdown Threat

What happens if Democratic lawmakers do not reach an agreement with the Trump administration’s budgeting plans on immigration and border security? Well, President Trump will threaten to shut down the government (again). Many immigration programs continue to be debated for the upcoming fiscal year 2019, including H-2A and H-2B visas. Negotiations to meet Trump’s demands could mean even more changes and regulations added to foreign worker visa programs. Because of this, any employer reliant on H-2A or H-2B should pay close attention to the government’s budget negotiations in upcoming months.

Businesses and The Immigration Effect

This video highlights a local business’ struggles with finding available workers, in part due to an insufficient number of H-2B visas available. It also emphasizes the economic impact that is estimated to occur as a result of a lack of workers, and how hurtful the current visa lottery system has been on these affected businesses.  

H-2A and H-2B Daily News Alert - July 31, 2018

 

H-2A Usage in Washington State May Increase 60 Percent

According to growers in Washington state, available domestic labor is becoming scarcer. Many growers are turning to the H-2A Program to solve this dire problem. Indeed, estimates are that H-2A usage will increase as much as 60% in the near term.

NHLA and USCC Request Cap Increase for H-2B Program

Leaders in the landscaping community are calling for an increase in the number of H-2B visas available per season, claiming that labor shortages are a result of a lack of available foreign worker visas. Employers in the green industry should pay close attention to these demands as the time for the House of Representatives and the Senate to vote on changes to foreign worker visa programs comes closer.

Concerns About Farmworker Shortage Grow

This article further details the struggles that farmers are having to endure as a result of domestic labor shortages and a cumbersome process. Although many employers are forced to use unauthorized labor, this course is very risky.  An increase in ICE audits and penalty fines indicates that it is now vital to seek legal help to make sure you stay in compliance, for the sake of both your protection and that of your employees.

Tips To Help Overcome Farm Labor Shortages

This article notifies farmers to begin the proper procedure for H-2A program applications as soon as possible if need be. These programs also help farmers attempt to reach out to the local community for available workers before certifying any need for foreign aid. To go further into the details of the legal process for foreign worker visa programs, please feel free to contact our office at (202) 661-2173 or via email at wendel@halllawoffice.net.