July 27, 2018 Edition: H-2A and H-2B Weekly News Alert - News You Can Use

Republicans Push Massive Foreign Worker Visa Expansion In DHS Spending Bill

 

Yesterday, the Republican House Committee introduced two amendments to the Department of Homeland Security appropriations bill. These amendments included allowing non-seasonal agricultural employers to use the H-2A Program and to adopt a modified returning worker exemption for the H-2B Program.

 

            Comment:   H-2 employers are making progress. However, as the bias in the title of the article indicates, H-2A politics (“massive expansion”) can affect H-2B politics (limited returning worker exemption).

 

 

Western Growers, California Farm Bureau Oppose AG Workforce Bill

 

Farming groups are divided over whether or not to support a bill introduced last week by House Judiciary Committee Chairman Bob Goodlatte (R-VA) to replace the H-2A visa program with an agricultural guestworker program, otherwise known as the H-2C program. Employers and employees alike should pay close attention to this bill so as to stay up to date with H-2A visa processes.

 

Comment: A house divided against itself cannot stand.

 

Limits on Seasonal Work Visas Hit Maryland’s Crab Industry

 

This article is an interview with a representative of a seafood company in Maryland cannot meet demand due to insufficient labor as a result of the H-2B cap and lottery system. The suffering of the seafood industry as a result of limited available H-2B visas was a prominent point that Rep. Rutherford (R-FL) made in support of a fairer visa system on the DHS FY19 appropriations bill mark-up on Wednesday.

 

Comment: H-2B workers are essential and when a business can’t hire them, small businesses suffer. Where are the U.S. workers that so many say are waiting to take H-2B jobs?

 

Agriculture Visa Process Expected To See Changes

 

This article summarizes why employers and workers alike should expect the tedious, bureaucratic process of the H-2A visa program to have significant changes in the next couple of years, based on statements made by the Trump administration and bills such as H-2C being argued by Representatives. The H-2A program and immigration process as a whole requires consistent attention to updating visa paperwork, so it’s important to be aware of these changes so as to continuously abide by USCIS regulations and laws.

 

 

 

 

ICE Auditing Hiring Records of 5,200 Businesses

 

ICE has audited thousands of Form I-9 audits since fall of last year, making it more important than ever for employers to keep their I-9 paperwork as compliant as possible. This article also mentions IMAGE, a program agreed upon by employers and the government, which aims to keep employers clear on up to date requirements of these visa programs.

 

Comment: Every business should review their I-9 compliance. Some H-2B employers think that they don’t have to worry about I-9 compliance because H-2B workers are authorized. WRONG. This could be a costly mistake.

 

Questions: Call Wendel Hall at (202) 661-2173 or email him at wendel@halllawoffice.net.

 

07 26 2018 - H2A and H2B Daily News Alert - What You Need To Know

Daily News Alerts: July 26th, 2018

 

ICE Statistics on Workplace Arrests Show How Much They’ve Increased Under Trump

 

ICE is arresting people in their workplaces at drastically higher rates than ever before, with data from the agency showing numbers of arrests five times higher than the data from the previous fiscal year.

 

No Vote for AG Labor Bill Before Recess

 

This article provides information regarding the new H-2C visa bill. All employers and workers who are a part of the H-2A program pay close attention to the progress of this bill, which introduces a new, more technologically driven program (H-2C) that would replace H-2A.

 

Republicans Push Massive Foreign Worker Visa Expansion In DHS Spending Bill

 

Two new amendments related to the H-2A and H-2B Programs were adopted to the Department of Homeland Security appropriations bill on Wednesday, July 25th. These amendments would allow all agricultural employers to benefit from the H-2A program, rather than just seasonal ones, and would increase the number of H-2B visas available per fiscal year. These changes would allow more employers to hire more desperately-needed workers, and should be closely monitored by all parties affected by the H-2 visa system.

 

ICE Targets 75 New Jersey Businesses With Audit Notices Over Hiring Practices

 

New Jersey is the latest state to undergo extreme ICE audits for I-9 compliance.. It is important for all employers to be up to date with I-9 compliance. 

 

Questions - call Wendel Hall at (202) 661-2173 or email at wendel@halllawoffice.net

 

 

DOL Admits That Functioning H-2B Program Is In The Public Interest

In Padilla v. Acosta, DOL opposed entry of a TRO that would have indefinitely delayed H-2B processing. In its opposition, DOL made several important admissions about the value of the H-2B Program:

  • p. 12: Processing delays (and by implication lack of visas) harms small business: "Until a prospective H-2B employer receives a labor certification from OFLC, it cannot submit a petition for an H-2B visa with USCIS. See 8 C.F.R. § 214.2(h)(6)(iii), (iv)(A). Because the petition process at USCIS takes an additional period of time, Plaintiffs’ requested relief would impair the ability of prospective H-2B employers to complete the process without further delay, and may impair their ability to bring foreign workers into the country by their requested start date of April 1, 2018. If implemented, such “relief” would harm thousands of small business owners across the United States, like landscapers, hoteliers, foresters, amusement park operators, seafood processors, and more, whose businesses are absolutely dependent on the employment of temporary or seasonal workers for positions for which there are no available U.S. workers."                                                                                                            
  • p. 13: DOL admits that meeting the needs of U.S. employers is part of its statutory mandate: "These equities include Defendants’ need to conduct the H-2B program as set forth by Congress and the government through the applicable statutes and regulations, such that the needs of U.S. employers and protections for the domestic workforce are met."
  • p. 13: DOL recognizes that processing delays cause severe economic harm to thousands of small employers: "Furthermore, these equities also include the severe economic harm nationwide to thousands of small business owners dependent on the foreign workers they seek to employ through the H-2B program for the timeframe specified in their applications."

  • p. 16: DOL again admits the severe harm delayed processing causes: "As noted previously, if Plaintiffs’ requested injunctive relief were implemented, such “relief” would harm thousands of small business owners across the United States, like landscapers, hoteliers, foresters, amusement park operators, seafood processors, and more, whose businesses are absolutely dependent on the employment of temporary or seasonal workers for positions for which there are no available U.S. workers."

The question is this: If you don't believe DOL when it says a functioning H-2B Program is critical to America, who are you going to believe?

Padilla v. Acosta - The Key Documents

TRO's move fast. In a last minute effort, three companies tried to convince a California District Judge to upset DOL's first-come, first-served processing order. They failed. Judge George Wu denied their Ex Parte Application for Relief on February 16, 2018. 

The main theory was that moving from a random selection process where every employer that filed on a particular day had an equal chance for selection to a process based on order filed violated the Fifth Amendment. 

The purpose of this post is to provide a link to the main court documents. A later post will discuss any insights that can be gleaned from the filings. Here are the documents:

 

 

BREAKING: TRO Against DOL H-2B Processing - DENIED

On February 14, 2018, three companies represented by FisherBroyles sued DOL to stop DOL from processing H-2B Applications on a first come, first served basis. DOL lost. Here is the Order.

In a sharply-worded opinion, the court ruled against plaintiffs on all four elements of what they had to prove. The court was clearly annoyed that the plaintiffs waited until literally the last minute.

No further proceedings are scheduled. The Court said that plaintiffs could ask for an expedited hearing or not. The court also said that the case would proceed in the normal course.

Again, here is a link to the Court's Order.

Maximum Civil Money Penalties for H-2A and H-2B Violations Go Up

DOL issued a new regulation increasing maximum Civil Money Penalties or CMPs for regulatory violations. 

CMPs are fines authorized by regulation or statute. For example, the INA authorizes a maximum CMP for H-2B violation of $10,000. That cap was put in place in 2005. Inflation in effect has reduced that fine. 

To deal with the problem, Congress passed a law automatically adjusting CMPs for inflation. The current H-2A CMPs per violation or investigation are: 

  • Willful violation of the "work contract" - $5,695 (29 CFR 501.19(c)(1)
  • Health or safety violation causing death - $56,391 (29 CFR 501.19(c)(2))
  • A repeat violation of the above -  $112,780 (29 CFR 501.19(c)(4))
  • Failure to cooperate with an investigation - $5,695 (29 CFR 501.19(d))
  • Displacing a US worker with an H-2A worker - $16,917 (29 CFR 501.19(e))
  • Displacing a US worker application with an H-2A worker - $16,917 (29 CFR 501.19(f))

For H-2B workers, the maximum CMP is $12,383.00.

Knowing the potential CMPs is only the first step. DOL has a complex structure for deciding which CMPs apply to which violations. For CMPs based on past events, you should make sure DOL started with the correct amount. That could make a difference in the net fine/demand.

 

Protecting The Good Guys

Over the course of my career, I have represented hundreds of agricultural employers. All them were good guys. Most thought they didn't really need legal representation. They were the ones who needed it the most.

Good guys trust the government deep down. Good guys think that if they explain everything to the government, everything will come out all right in the end just because they are good guys. They know that's not the real world, but that's how good guys act.

And does the government and legal services try to take advantage of the good guys? Sure they do. Wage and Hour Division has a job to do - find violations. It is possible that WHD recognizes that some employers are good guys, but they see that as an easy mark. For legal services, there is no such thing as a good guy employer - just an abusive, slave-owning target. 

What motivates the Hall Law Office? There are easier and more certain ways to earn a living. It is this: the world has too few good guys. Good guys deserve to be protected from the government, from legal services, and from themselves when they are drawn into a system where their virtues are self-defeating. Good guys deserve someone who worries about details they don't and shouldn't have to think about. Good guys deserve someone with the skill and experience that can guide them through a system that often takes advantage of the good guys. It is this that motivates all the work and all the effort. So what does the Hall Law Office do? It protects the good guys.

This post was inspired by On The Bad Side Of The Curve. It is one of the best blog posts I have ever read. Read it. 

 

Immigration News: U.S.C.I.S. Issuing Redesigned Green Cards & EADs As Of May 1st

by Amanda DeVincenzo/Wendel Hall

On May 1, 2017, U.S. Citizenship and Immigration Services (USCIS) started issuing a redesigned Permanent Resident Card (“Green Card”) and Employment Authorization Document (“EAD”). These new cards feature enhanced graphics and fraud-resistant security features. BUT… will they prove to be highly secure and more tamper-resistant than the old cards? Only time will tell…

Changes You Will See

The new card designs will:

  • Display the person’s photos on the front and back;
  • Show a unique graphic image and color palette;
    • Green Cards will have a predominately green palette and feature an image of the Statue of Liberty and her gold foil torch.
    • EADs will have a predominately red palette and feature an image of a bald eagle.
  • Have embedded holographic images on both sides;
  • No longer display the person’s signature; and
  • Remove the optical stripe on the back of the Green Card.

YOUR Unexpired Card Is Still Valid

No need to run out and get a new Green Card and EAD just yet! Existing and new documents will remain valid until the expiration date on the card.

Older Green Cards without an expiration date will also remain valid. You can either save yourself the time and paperwork and wait until it regularly expires. Or you can apply for a replacement card that displays an expiration date.

How The Redesign Affects YOU

The redesigned card will not change the process for applicants. You may still receive the existing design format after May 1, until current supplies are depleted. Click for information about the Green Card application process. To request an EAD, you must file Form I-765, Application for Employment Authorization.

Existing and new cards are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

President Trump Signs Executive Order to “Buy American, Hire American”; Could Prove Problematic For H-2B Program As 2015 IFR Is Finalized

by Amanda DeVincenzo/Wendel Hall

Last week, President Trump followed up on his campaign promise by signing the “Buy American and Hire American” executive order to reform U.S. trade and immigration policies. Under this order, it is the policy of the executive branch to buy only goods, products, and materials produced in the U.S.; and to regulate requirements for temporary foreign workers entering the United States. However, the guidelines on how federal agencies will administer and enforce the provisions of this order are vague and symbolic. Read the full text of the order here.

            What Does The Executive Order Say?

The “Buy American” Provision

Section 2(a) of the executive order directs each agency to judiciously monitor, enforce, and comply with ‘Buy American Laws’ “to promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases.”

The “Hire American” Provision

Section 2(b) of the executive order directs the executive branch to enforce and administer the regulations for temporary foreign workers entering the U.S. The basic goal of the “Hire American” provision is to protect hard-working American workers from being displaced for cheaper foreign labor.

            What Does It Mean?

To implement this directive, § 5(a) directs the Attorney General and Secretaries of State, Labor, and Homeland Security to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”

Nothing in the order’s text specifically calls out the H-2B visa program. But that doesn’t mean we’re safe. The involvement of Attorney General Sessions is worrisome and if criteria similar to those used for the H-1B program are used, the H-2B program could be in trouble. So, too, would be the temporary workers, the employers who need them to stay in business, and the Americans who benefit from the economic stability that low-skilled, temporary, foreign workers provide.

Future Of H-2B Program Is Unpredictable As 2015 IFR Is Finalized

The H-2B program hangs in the balance while the 2015 Interim Final Rule is finalized. DHS and DOL jointly issued the interim rule on April 29, 2015, to change the temporary employment certification process and to add expensive worker protections that make it more difficult to use the program without actually helping workers.

Given DOJ’s, DOL’s, and DHS’ past hostility to the H-2B program, we are concerned that they could use the process of finalizing the IFR to make the H-2B program even less workable for those who need it.

With an executive agenda focused on ‘giving Americans their jobs back’, the direction of immigration policy and foreign-worker programs in the U.S. is unknown. Hall Law Office will watch developments closely. Check back for updates on this and other actions that affect the H-2B program.