The Right Conservative News Sites | Right Side News

Center for Immigration Studies

Americans don't want to mow your lawn. They don't want to serve you your lobster roll sandwich during your summer holiday in Maine.

They won't drive the trucks that bring food to the grocery store you shop in, or chop down the trees that produce the paper you use, or perform at the circus you attend every summer.

You'll also need the helping hand of a "temporary, seasonal" guestworker to help you get on the chair lift in Vail, and to learn how to ski or snowboard. Nor will Americans guard your swim club's pool, shovel the snow in your driveway, operate the rides at the amusement park you take your kids to, tidy up the hotel room you sleep in, or process the seafood you eat.

Americans can't even be counted on to coach sports, or work construction jobs.

American workers have grown soft, young people don't want to work, and the unemployed don't want to do much of anything strenuous these days.

These are the kind of flawed assumptions that have led to the creation and rapid growth of the H-2B visa program, which has resulted in more half a million jobs being filled by foreign guestworkers over the last five years, rather than Americans and immigrants already in the United States.

Despite the significant impact that the H-2B visa program has on American workers, the program receives scant media coverage compared to other guestworker categories. Issues surrounding the issuance of H-1B visas, for example, tend to receive far more media scrutiny because the beneficiaries and the victims are highly educated and often fall within the same social circles as journalists, and the topic of higher-paying skilled jobs is perceived to be more relevant to the kind of readership and viewership that advertisers desire. As the global recession continues to take its toll on the American economy, this is an opportune time to re-examine the H-2B program and to evaluate whether these jobs could be filled with people already in the United States. The goal of this report is to shed light on the poor conditions that H-2B guestworkers often toil in; to expose the damage that this program does to the most vulnerable sector of American workers: the poorly educated, students, minorities, and legal immigrants; to examine the recruiters who find workers and the employers who hire them; and to scrutinize the government's role in sanctioning and managing the H-2B bureaucracy.

Key Points

• The popularity of the H-2B program for temporary, seasonal, non-agricultural guestworkers has soared from just 15,706 visas issued in 1997 to an all-time high of 129,547 in 2007.
• The Save Our Small and Seasonal Business Act (SOSSBA) passed by Congress in 2005 provided an exemption for returning H-2B workers so that they would not count toward the annual 66,000 cap on H-2B visas. The SOSSBA was a windfall for H-2B employers, but Congress failed to renew the legislation in 2008. The U.S. Chamber of Commerce lists expanding the H-2B program as one of its "Policy Priorities for 2009."
• Despite the global economic crisis, demand for H-2B guestworkers remains strong, even in areas with high unemployment rates. American companies filed petitions to request nearly 300,000 H-2B workers in FY 2008.¹
• Use of the H-2B program has morphed from its original intent to help employers that need seasonal and/or temporary workers. The majority of the program's current users are neither small nor seasonal employers, but rather mid- to large-sized companies and recruiters that petition for H-2Bs to work for 10 months out of the year, year after year.
• Many of the businesses filing H-2B petitions for foreign workers are "body shops" that have no actual "seasonal or temporary" need for labor. Body shops can petition for large numbers of workers and then essentially sell them off to companies that either could not get their own H-2B workers or did not know how to do so. Given the fact that H-2B has an annual numerical cap, critics of body shops argue that they "hoard" workers and then drive up the price for everyone else.
• Despite credible allegations and even convictions for fraud and abuse of both H-2B workers and the program in general, neither the Department of Labor (DOL) nor the Department of Homeland Security (DHS) has ever barred a U.S. company from filing H-2B petitions. Some repeat offenders continue to have their petitions approved to this day.
• U.S. H-2B employers and the U.S. recruiters they hire often partner with foreign recruiters, and then deny knowledge of the foreign recruiters' tactics when fraud and abuse are alleged. U.S. courts have not shown a willingness to try cases of abuse when the violations occur outside the United States, even if the case involves a job being performed in the United States.
• While many H-2B jobs offer low wages of less than $10 per hour, a substantial number of H-2B visas go to more skilled workers who earn up to $40 per hour. Industries that are particularly heavy users of the H-2B program include landscaping, forestry, hotels and restaurants, amusement parks and leisure facilities, and seafood processors.
• Employers value H-2B workers because their legal status in the United States is tied to their employment and because they often have extended families in their home countries depending on their wages, making them loyal and motivated workers. Racial discrimination may also induce U.S. employers to petition for H-2B workers rather than employ black American workers.
• Hourly compensation for U.S. workers has stagnated since the H-2B program began to expand in 2002, and economists have found no evidence of a labor shortage in the occupational groups that constitute the bulk of H-2B employment.²
• H-2B employers are required to advertise job vacancies prior to opening them up to H-2B guestworkers, but the ads more frequently resemble legal notices than real enticements and are often specifically designed to attract as little attention as possible.

H-2B Basics

The H-2B nonimmigrant visa classification applies to foreign nationals seeking to perform non-agricultural labor or services of a "temporary nature" in the United States, but the term "temporary" has come to be essentially meaningless in the H-2B context.

Some key basics regarding H-2B visas:

• The H-2B visa was created in 1986, as part of the Immigration Reform and Control Act, which split the H guestworker program into an H-2A visa for agricultural guestworkers, and an H-2B visa for non-agricultural guestworkers.
• U.S. firms filing H-2B petitions must establish that their need for the services or labor is "temporary," regardless of how long that is.
• The petitioner's need is considered "temporary" if it is a "one-time occurrence, a seasonal, peak load, or intermittent need."
• U.S. Citizenship and Immigration Services (USCIS) more specifically defines temporary as "generally limited to one year or less," but allows H-2B workers' visas to be extended for an uninterrupted stay - either for the same or a different employer - of up to three consecutive years. After three years in the United States, H-2B visa holders must reside outside of the United States for 90 days. If they spend less than 18 consecutive months in the United States, they only need to depart for 45 days to reset the clock to zero and return as an H-2B. If they were in the United States for more than 18 months, but less than three years, they need to reside outside the United States for 60 days before returning on an H-2B visa. These regulations were loosened under the George W. Bush Administration to allow H-2B employers to retain "seasonal" workers for longer periods of time.
• Congress has established an annual cap of 66,000 H-2B visas for each year, half of which become available on April 1, and the other half on October 1. SOSSBA allowed for "returning" H-2B workers to obtain H-2R visas that would not count against the cap. This act, which had nearly 150 co-sponsors in the House, pushed the total number of H-2B/H-2R's to an all-time high of 129,547 in 2007 (see Figure 1). This legislation was allowed to expire on September 30, 2007, to the great consternation of business interests that continue to lobby for its renewal.

• Prospective employers of H-2B workers must first obtain certification from the U.S. Department of Labor (DOL) that 1) there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work; and 2) the employment of H-2B aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. (New DOL regulations may alter or end this requirement.)
• Once the employer has obtained an approved temporary labor certification, the employer may file a Form I-129, "Petition for a Nonimmigrant Worker," with USCIS to classify the individual as an H-2B worker. Once the petition is approved, the worker may apply for an H-2B visa at a U.S. embassy or consulate abroad. Unlike H-1B visa applicants, H-2B visa applicants - who are often unemployed in their home countries - must overcome section 214 (b) of the Immigration and Nationality Act, which requires that applicants prove they intend to return home after their visas expire.
• Employers are required to pay employees the prevailing wage (as set by the various state workforce agencies for each occupation and locality) and provide housing - though they are allowed to charge workers for it. H-2B workers are tied to the employer that files the petition for them; if a worker fails to turn up for work on five consecutive days, the employer is required to report the delinquency to the Department of Homeland Security.
• DHS, in concurrence with the State Department, determines which countries are eligible to participate in the H-2B program, based on how cooperative each country is on deportation and other consular issues, as well as "how important the country is to the operation of the H-2B program."³ In 2009, citizens of the following countries are eligible to participate in the H-2B program: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, the Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine, and the United Kingdom.

========================================

Employers: We Want Our H-2Bs

A wide variety of U.S. employers rely on H-2B labor as an integral part of their labor force. Sectors of the American economy most dependent on H-2B workers include landscaping, forestry, hotels and tourism, seafood processing, restaurants, amusement parks, and construction. Popular websites like www.myvisajobs.com provide an inside glimpse at the types of companies that are importing H-2B workers and the specific jobs and wages they are securing. While many of the job openings listed on the site are what one might consider classic unskilled labor, some clearly are not. For example, the site lists approved H-2B petitions for professional coaches and athletes with employers like the U.S. Ski and Snowboard Association, which pay H-2B visa beneficiaries up to $6,500 per month.

CONTINUE TO THE CENTER FOR IMMIGRATIONS STUDIES FOR FULL REPORT AND DOCUMENTED REFERENCES