H-2B Visa Program Issues Could Leave Some Contractors Shorthanded

While the immigration issue as a whole is a lightning rod for controversy, contractors should be aware of one specific aspect of it that, while completely aboveboard, has the potential to cause problems this summer.

According to an article in Construction Dive, the H-2B visa program, which allows employers to bring foreign nationals to the U.S. to fill temporary, non-agricultural jobs, is surprisingly important to at least a percentage of the construction industry.

In order to use H-2B, employers must establish that there are not enough U.S. workers who are able, willing and qualified to do the temporary work and that wages will not be adversely affected by hiring a foreign worker. There are specifications, however; an overview follows, but full details can be found here.

In order to take advantage of the H-2B visa, employers have to show the following:

  • There are no American workers able and willing to do the work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • The job must be one-time, temporary and/or seasonal in nature (something that applies to many construction positions), it may be an intermittent need, or it may be a peak load need.

It’s a lot of red tape, but it’s done to make sure American workers are protected, and that they have been given first right to available jobs.

So far, that has not been a problem, according to sources, who say that much manual labor is involved for many of the jobs in question, and U.S. residents – including high school and college students – don’t want to perform those tasks.

The problem, though, is the cost. In addition to the regulatory expenses, employers are also obligated to cover all travel and visa expenses for H-2B workers, according to Chad Blocker of Fragomen, Del Rey, Bernsen & Loewy, LLP in California. “It’s not just going through the process of filing the applications with the government, paying the legal fees, paying the government filing fees, paying the newspaper ad costs, but they’ve also got to pay for the transportation to the United States and the transportation home,” he said.

Once the job is over, then the workers are required to return to their home country unless they can find another employer with a temporary need, according to Angelica Ochoa, with the law firm of Fisher & Phillips. Foreign H-2B workers can “hop” companies this way for up to three years.

Construction Dive also notes,

The lead time that these applications require also makes it a questionable tool for the construction industry versus those industries like hotels and resorts that can predict almost down to the last employee how many workers they will need from season to season, Ochoa said. And, of course, if companies only need a few workers, the process doesn’t make financial sense, she added.

With the incredible expense and regulatory paperwork gauntlet involved in bringing H-2B workers into the country, according to Ochoa. “There’s really no economic advantage for an employer to hire foreign workers over American workers.” In fact, there are fewer employers pursuing the H-2B program today than 10 years ago precisely because of the burden, she added. “It’s always the last resort. The companies that are using it are using it because there is truly no better option.” 

Industries that rely heavily on H-2B workers are sports facilities for maintenance, including golf courses (where larger staffs are needed in peak months) and venues in the equestrian world, such as at rodeo grounds, race tracks and riding centers – although many other facilities use these workers as well. The hospitality industry also relies heavily on H-2B workers.

Even the Trump administration was entangled in the debate when it came to light that prior to his presidency, then-resort owner Donald Trump hired 69 H-2B workers at the Mar-a-Lago Club. This took place during the 2015-16 high season, the Palm Beach Post reported.

By comparison to other industries, construction has a smaller percentage – but it has been used enough that it is worth the review.

The concern with H-2B at present is an aspect known as the returning worker exemption, which allows those returning to work in the U.S. within the past three years of receiving a H-2B visa to not count against the annual cap. The annual cap is set at 66,000 workers, and it was met on March 13.

The returning worker program expired in September, leaving those who depend on the program to wonder if there will be enough workers to perform the work they need.

ASBA will continue to follow this issue.

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