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WJAC: The H-2B Visa System is Broken in Landscaping and Construction

‘We don’t need you’: Employers reject US workers for H-2B visas

The economy was down over 8 million jobs from pre-pandemic levels when the Biden administration announced in April it was raising the cap on temporary immigrant workers, allowing an additional 22,000 H-2B visas for the year.

At the time, Dennis Martire had lined up over two dozen contractors who were interested in hiring his landscapers. Martire represents construction and landscaping workers as vice president of the mid-Atlantic Region of the Laborers' International Union (LIUNA). The jobs were temporary, but they would pay union wages, about $17 per hour, plus benefits.

"We had some companies taking our people. Then they got their H-2B visas and said, 'We don't need you guys anymore,'" Martire explained.

He said it was like pouring salt into a wound. The employers claimed no American workers were willing to do the jobs, yet his people were getting sidelined.

"The H-2B visa program is supposed to be for if you can't find domestic workers here, it's supposed to be a backstop," Martire continued. "But the system has gotten out of control and it's working in reverse. Now, it's: our H-2B visas come first and then if we can't get them, we'll consider you guys."

Rather than paying union wages, the companies opted for visa workers who are only required to be paid minimum wage or the "prevailing wage" for the specific job, often lower than the average pay. There are no benefits and nominal worker protections. Their immigration status is conditional on their employer. It's been compared to indentured servitudeit has.

"The way the program is set up, it's abusive to the foreign workers and it's disgraceful to domestic workers," the LIUNA union leader charged. "It's broken badly and it really needs to be revamped."

The Department of Homeland Security explained in its announcement that it was releasing the 22,000 additional visas in response to immediate employer demand for temporary, seasonal workers. "Businesses across the country, despite attempts at recruitment and hiring of U.S. workers, report critical vacancies," the agency wrote.

The U.S. has a 66,000 annual cap on temporary worker admissions that's been in place for nearly 30 years. Every year for the past five years, it has been lifted—and regularly before. In 2019, the Trump administration issued roughly 98,000 H-2B visas. It was on track to exceed that in 2020 until COVID-19 upended the employment situation. Former President Donald Trump halted the processing of worker visas citing further risks to the labor market.

The Biden administration immediately came under pressure to lift the ban and expand the cap. Industry groups and lawmakers from states that rely on seasonal labor urged him to act to address the worker shortage that they said was threatening the economic recovery.

Many of the same interests are now pushing to expand the cap permanently.

On Tuesday, a bipartisan group in Congress reintroduced legislation that would exempt returning H-2B visa workers from the annual cap, allowing more guest workers. The H-2B Workforce Coalition, an alliance of thousands of small and seasonal employers, applauded the bill as well as hospitality, landscaping and seafood industry groups. The U.S. Chamber of Commerce said the legislation would help businesses "meet their workforce needs and fully contribute to America’s post-pandemic economic recovery."

With official unemployment at 5.8%, some have raised questions about claims of labor shortages, suggesting open positions should be filled by the ranks of unemployed Americans before raising the visa cap.

"In a moment where we have millions of workers laid off, it doesn't seem to make a lot of sense," said Daniel Costa, the director of immigration law and policy research at the Economic Policy Institute.

The H-2B statute specifies that temporary worker visas should be authorized "if unemployed persons capable of performing such service or labor cannot be found in this country." Costa noted that most of the major H-2B occupations and industries still have rates of unemployment that are higher than pre-pandemic levels. Many have renewed demand for workers, including landscaping, food service, housekeeping, construction and amusement and recreation attendants remain below pre-pandemic levels.

"I do think the priority is getting U.S. workers back to work before we use a program for labor shortages. But I think you can see why employers would turn to this program," Costa said. "If you don't want to raise your wages to $15 an hour to attract workers, then the H-2B program is one option."

While critics argue the visa program depresses U.S. wages, particularly in top H-2B visa occupations, some studies have correlated greater numbers of H-2B workers with higher wages for Americans. A report by the Government Accountability Office found that wages were higher and unemployment lower in counties with employers who hired H-2B workers. Other studies have suggested the H-2B program increases job opportunities for Americans.

At its core, the H-2B visa program was designed to protect U.S. jobs and wages and guarantee foreign workers' rights. But critics say the reality is different from what is written in the rules.

One of the critical U.S. worker protections is employee recruitment. The Department of Labor requires employers to demonstrate that U.S. workers are not available to fill the positions, which have to be nonfarm jobs lasting less than 10 months. Before being approved for visa workers, an employer has to make an effort to recruit advertise the open positions in newspapers, job boards and submit the openings to state job agencies. Employers in fields that are typically unionized, also have to contact unions for referrals.

Employers can skirt the rules by placing barely legible ads in obscure newspapers, imposing high job requirements to discourage applicants or rejecting candidates, claiming they were unqualified.

Ernest Ojito, business manager of LIUNA Local 202R recently brought one of his 25-year-old workers to a job fair in Northern Virginia. He had seen a flier advertising openings for landscaping workers with a company that was simultaneously applying for H-2B visas.

"He was the perfect candidate: bilingual, clean record, skilled," he noted. The company turned him down.

"That's telling me you're not hiring because you want to say you had events, no one showed up and you need visa workers," Ojito said. After the incident, he filed a complaint with the Department of Labor.

Formal complaints can help shine a light on persistent violations and call attention to employers who are abusing the system, explained Arthur Read, a career labor attorney and general counsel for Justice at Work. "That doesn't get people a job tomorrow, which is what they want." Penalties for recruitment violations can include fines or a warning.

Recruitment of domestic labor remains a significant problem for the program. Restaurants in summer tourist destinations post jobs for dishwashers requiring prior experience. Jobs are rarely posted in languages other than English.

More recently, the Biden administration failed to require companies applying for new H-2B visas to post their open positions on the Labor Department's centralized seasonal job site.

"All of those play into how U.S. jobs don't get to U.S. workers," Read said.

The H-2B visa program has also been subject to other abuses, particularly worker exploitation. Because the worker's immigration status is tied directly to his or her employer, it gives them power that a typical employer does not have over an American worker. If a worker chooses to leave the job or if they are fired, they lose their legal immigration status and face deportation.

Some workers also live in company-owned housing and their employer can deduct room and board from paychecks. There are few Department of Labor regulations setting a limit on how much an employer can charge for housing and no general federal regulations on the conditions of the housing.

There have been thousands of documented cases of employer abuse and endangerment under the program that have largely gone unaddressed. The anti-trafficking group Polaris reported there were 3,000 cases of human trafficking survivors between 2015 and 2019 who were legally working in the United States under guest worker visa programs.

"The way it operates is really employer controlled to hire workers who are indentured," said Costa. "If the program had some basic rules that were decent and upheld labor standards, if the program required employers to do a real search of the labor market, if it required them to pay a fair wage, we wouldn't have to worry so much."