Untangling the Immigration Thicket
In a dining room full of East Hampton employers, about six raised their hands when asked at an East Hampton Business Alliance breakfast last Thursday if they use the H-2B visa program to bring in seasonal foreign workers.
The many more who may be most dependent on that program locally were likely too busy preparing for the summer season to take time out for the sit-down breakfast at Cittanuova. The topic: “The East End Employer and Immigration Issues.” In a changing political climate, with immigration and American jobs occupying top spots in many a 2016 presidential stump speech, it is a subject employers are paying close attention to.
Nadine Trinh and Thomas Walsh of the law firm Jackson Lewis offered an update on current immigration regulations and pending legislation that affect employers who hire foreign workers on a temporary basis for nonagricultural jobs. Ms. Trinh focused primarily on the H-2B visa program, long a source of supplemental labor for employers faced with the seasonal need for low-skill workers. For those dependent on the program, the news was mostly discouraging, but not surprising.
“This is not about what we think the law should be; it’s about what the law is,” Mr. Walsh said as he introduced Ms. Trinh, who specializes in employment-based visa processing at the firm’s White Plains office.
Hotel housekeepers and other resort staff, landscapers, cooks, bellhops, warehouse workers, and maintenance staff are just some of the workers who might fall under the H-2B program, which allows employers who meet specific criteria to bring foreign nationals to the U.S. for temporary employment. Underlying all of the program’s regulations is the notion that foreign workers should not be brought to the U.S. for jobs that could be done by resident workers.
Since the program was established in 1990, the annual cap on visas has remained at 66,000, with half available for workers coming in the first half of the year and the remainder for the second half of the year, Ms. Trinh said. This year, the 33,000 cap for the first half of the year was reached by the second week in January, and the cap for the second half of the year was reached in March.
For employers, petitioning for the H-2B program is not a quick fix to the seasonal labor shortage. “It’s a fairly involved process in a short window of time,” Ms. Trinh said. “You start four to five months in advance.”
Employers must first request the prevailing wage for a given position from the Department of Labor, which can take six to eight weeks. Then they have to test the local labor market, running help-wanted ads for a certain period of time to demonstrate to the Department of Labor that they cannot find resident workers to do the job at the prevailing wage. Only then can they file their request for H-2B classification from the United States Citizenship and Immigration Services.
“It ends up costing you an exorbitant amount of money to place an ad for this position,” Ms. Trinh said.
Finally, prospective workers living outside the country must personally apply for a visa from the United States Department of State at a U.S. embassy or consulate. There is always a chance, Ms. Trinh said, that the worker could be approved for a visa but be turned away at a port of entry. “It is possible to be flagged or even denied entry for something that happened years ago,” she said.
In short, “If you didn’t start until January, it’s probably too late. . . . If you didn’t start until September of last year, it probably would have been too late.”
Some years there have been exemptions for returning workers, but Congress failed to reinstate that exemption last September for 2017. “There is a lot of talk of reforming the H-2B visa program,” Ms. Trinh said. “A lot of lawmakers are putting pressure on to increase the numbers of H-2B visas available,” or to audit the program to see if any of the visas have gone unused.
There is also a provision in the omnibus spending bill passed earlier this month that gives Homeland Security Secretary John Kelly the discretion to allocate an additional 70,000 H-2B visas this year, but employers could lose a lot banking on that, Ms. Trinh said. “We heard there may not be any discussion on this until after the July 4 recess.”
“If you are willing to assume the costs of knowing that [the additional 70,000 visas] may not go anywhere, you can certainly start the process now,” she said.
Her best advice for employers who think they will need temporary workers next summer is to start the H-2B process “no later than the end of this year.”
Some employers also find seasonal help through the J-1 exchange visitor visa program, which allows full-time postsecondary students in a foreign country to work temporarily in the U.S. while visiting and traveling here.
“It’s a good option,” Ms. Trinh said, and “there is no annual cap,” but if employers have a history of using the H-2B program and “all of a sudden you go to J-1,” it could send up red flags, she said. Housing is typically provided to students working in the U.S. on J-1 visas.
Taking the legal path to hiring seasonal foreign workers can be expensive and time-consuming, but knowingly hiring undocumented workers can result in significant fines, ranging from $2,100 to $21,000, Ms. Trinh said last Thursday.
“Employers have to be careful to request and keep a record of proper documentation,” she said, “but they also cannot engage in any discrimination.” Requesting too much identification can be seen as discriminatory. “Do what you need to do, but make sure you’re not doing too much.”