Tuesday, May 17, 2011

Response to NRPM

As Promised:  Below is our comments submitted today in reference to NRPM..

We are also a part of a comprehensive response with 15 other Agents.  We will make that link available to you once it is published. 

If you have not got your comment posted - you  have until midnight tonight.  Thanks everyone for your patience - I know I have been pretty unavailable for the past few weeks while working on this.   Lori


Action Visa Assistance is an employer's agent and has administered over 600 Temporary Labor Certification Applications in 8 years. We have witnessed a multitude of regulatory changes and have helped our clients successfully adapt to each of them. We represent small employers in landscaping, construction, seafood production and various other labor intense industries. We have always considered H-2B to a small business concern.

U.S. Department of Labor’s ODEP website “With more than one million new businesses each year, America’s economy depends on small businesses for its vitality and growth. According to the 1997 report of the U.S. Census Bureau, the nation’s 17 million small, non-farm businesses constituted 99.7 per cent of all employers, employed 52 percent of private workforce and accounted for 51 percent of the nation’s sales. Small business-dominated industries provided 11.1 million new jobs between 1994 and 1998, virtually all of the new jobs created during that time period. Small businesses are most likely to generate jobs for young workers, older workers and women, provide 67 percent of first jobs and produce 55 percent of innovations.”

More recent data from the Small Business Administration finds “Small firms: Represent 99.7 percent of all employer firms, Employ half of all private sector employees, Pay 44 percent of total U.S. private payroll, Generated 65 percent of net new jobs over the past 17 years, Create more than half of the nonfarm private GDP, Hire 43 percent of high tech workers (scientists, engineers, computer programmers, and others)…”

While the actual number of small businesses that use the H-2B program is not precisely known, the US DOL estimated that at least 50% of the users were small businesses. Because the US DOL had no actual numbers to work from on their estimation and because we are up close and personal with the program users– I along with many others believe that percentage to be considerably low. Hopefully, information being collected on the new ETA9142 will provide an accurate number by the end of this H-2B filing season. Regardless of the number, the above data clearly illustrates the importance small business plays in the economic health of our nation and 100% of our employers are small business employers as defined by SBA.

We have put our name and support to an earlier submitted comprehensive statement supported by 15 H-2B program agents, which we whole heartedly support – we also wish to make several independent statements on some particularly troublesome portions of this NPRM.

As stated in the NPRM, Vol. 76 No. 53

“the SWA must keep the job order on its active file and continue to refer U.S. workers who apply (or on whose behalf an application is made) for the job opportunity until 3 days before the date of need, when it is assumed that the last H–2B worker has departed for the place of employment, unless informed otherwise by the employer, as provided in proposed § 655.40.”

The above regulation has the potential to be very costly on the small business owner that is already working on very small margins. Appointments to process in Mexico can take up to 30 days to finalize, the visa fee of $150.00 per worker must be paid upfront to the U.S. Consulate AND is non-refundable – even if the appointment is cancelled in advance. Further, because worker applications (DS160) must be completed online a processor is generally required and their fee can range from $35.00 to $300.00 per worker. Some processors require workers to arrive 5 days before their appointments in order to begin completing paperwork at a sustenance cost at minimum of $10.73 per 24 hours ; most of the workers that apply for the temporary positions in the US are coming from rural areas – bus rates are generally around $50.00 one way and finally, lodging at bare minimum is $10.00 per worker per night. In country processing for the non-immigrant temporary worker takes minimum of 3 day: (1st day) complete paper work because it must be submitted the day before the (2nd day) appointment at (CAEC) which is the Consulate Biometric Check and finally (3rd day) the actual appointment interview and approval or denial of worker for visa. If the employer had to accept and hire applicants to that 3rd day – this would be the cost to either the employer or the potential temporary non-immigrant worker.

Non-refundable Visa Fee 150.00

Low end Processor Fee 35.00

Minimum Hotel for 5 days 50.00

Minimum Sustenance for 5 days 53.65

Bus fare of $50.00 one way - if not hired would be 2 way 100.00

Cost to process a single worker 388.65

From interviewing Mexican Nationals in their home country we know the average laborer in Mexico makes approximately $8.00 per day. If a non-immigrant worker is not hired because a US worker applied for the position 3 or 4 or 5 days before their Consulate appointment the worker would still have paid a full 48 days (2 months) salary in Mexico (388.65 / $8.00 per day). The regulations as proposed are not clear as to whether the employer or the worker at this point would have to pay the above fees (if the worker is not hired due to a domestic hire up to 3 days before the worker departure). If the travel and sustenance portion of the NPRM is passed and the worker is actually hired - it is clear the employer pays. But, if the worker is not actually hired (regardless of if the proposed rule passes or fails) because a US worker is hired 3 days prior to non-immigrants departure who would bear the brunt of the cost. Either way the potential expenses could quickly reach into the tens of thousands of dollars when multiplied by 10, 20 or 30 workers. The statement “The cost of visa fees will be entirely avoided if U.S. workers are hired” is inaccurate, as the above fees illustrate.

Further complicating the matter of recruitment up to 3 days prior to the workers departure of their home country is the employers date of need is upon them. Small business owners tend to be the sales and marketing person, operations manager, human resources director, foreman and chief bottle washer and cook; – they simply cannot run their business and operate in a recruitment mode for 120 days. That is setting the small business up for failure. A more realistic recruitment goal would be 30 days from the date job order is opened. That allows the owner to seriously put effort into recruiting domestic temporary workers and still to plan for his upcoming busy season.
As stated in the NPRM, Vol. 76 No. 53

“increase the amount of time that employers must accept referrals for temporary nonagricultural opportunities from qualified U.S. workers. The NPRM also proposes to increase the types of recruitment to ensure that U.S. workers are provided with a more robust opportunity to have access to the job opportunities that are the subject of labor certification applications. These include a greater number of ads than is required under the current regulation; the posting of jobs on an electronic job registry”

“the average cost of a newspaper advertisement ($25.09)”

“The job registry will improve the visibility of H–2B jobs to U.S. workers. In conjunction with the longer referral period under the proposed rule, the job registry will expand the availability of information about these jobs to U.S. workers and, therefore, improve their employment opportunities. “

“Transportation and Subsistence to and From the Place of Employment The NPRM proposes to require H–2B employers to provide workers—both H–2B workers and workers in corresponding employment unable to return each day to their permanent residence—with transportation and daily subsistence from the place from which the worker has come to work for the employer, whether in the U.S. or abroad, to the place of employment. The employer must also provide the worker with the cost of return transportation and daily subsistence from the worker’s place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer.”

A study we conducted in 2009 of our client base found the following: 1, 946 positions were available for temporary workers. Active recruitment, under the supervision of 11 state workforce agencies, was conducted. Recruitment included running daily employment ads in local papers, opening job work orders with local workforce agencies, asking for referrals, contacting union representation when the job classification was traditionally unionized and in most cases the position being listed on internet job sites. A total of 97 possible applicants were submitted to all employers, each applicant was contacted and asked to come for an interview. Fourteen individuals showed up for interviews and of those 14, only one person accepted a position. Besides those 1,946 temporary positions, the aggregate permanent employee count for these small businesses is approximately 3,500 people. From past recruitment experience, it is fairly clear that these highly labor intense, temporary jobs are not desirable to U.S. workers. A recent survey conducted by Immigration Works USA of over 400 H-2B employers illustrates it well - 71% of the domestic workers hired by H-2B employers stayed less than a month. However, the H-2B employer still lost those position (on their US DOL Labor Certification) and could not bring in non-immigrant workers to fill those vacated positions without first going back to USDOL and completing the entire labor certification process over again (at great expense and too late in the season to help them), filing a new petition with USCIS, etc. The same survey showed that only 6% of those hired stayed the entire busy season for the employer. Bottom line, if a temporary worker – be it domestic or foreign – leaves an employer in the middle of a busy season, the small business has the potential to lose profit, business and could even be forced to close its doors if it cannot perform up to their contracts. Employers I have talked with would prefer to hire domestic workers; the expense is considerably less than hiring an attorney or agent to navigate the ever-changing rules and regulations of the H-2B program and the potential damages are less – but the reality of it is, employer’s either cannot find enough willing and able domestic workers or the domestic temporary workers they do hire leave them at their busiest time once they procure permanent employment elsewhere.

We work in 11 different states, and communicate regularly with other agents and attorneys that operate in far more states – the stories are all similar as above. Expanding the search to neighboring or far reaching states will not have the desired result. As is stated by US DOL itself “We have not identified appropriate data to estimate any increase in the number of U.S. workers that might be hired as a result of the NPRM provisions”; however they are willing to impose greater time commitments and higher costs to the employer in order find out if their theory is accurate. That seems highly inappropriate in the current economic environment. I further challenge the above estimated $25.09 newspaper advertisement cost; our experience at placing employment ads shows those averages to be closer to the $500.00 per advertisement cost. Many metropolitan newspapers (such as the Dallas Morning News) have multiple rates – and they charge the highest of rates for “immigration” advertisements; other papers follow the same rules – they have a captive audience (as they know regulations require the running of the advertisements) and capitalize on it. Further, we have only found one newspaper in a very rural area that charges only 21.00 – we averaged out newspaper ads from rural communities to metropolitan areas to be approximately $500.00 – unfortunately the higher rates are considerably higher than the lows. Requiring an employer to run multiple employment ads would only add to the cost of recruitment without any expectation of increasing the likelihood of positive outcomes.

Transportation and subsistence upfront add to the possibility of disingenuous acceptance of positions in order for an individual to simply benefit from the prepaid travel; we believe some investment in the process is acceptable as it benefits the employee in that they receive a job. However, if this is to become a part of the new regs – we would ask that it be changed to “reimbursed after 50% of work contract is complete”. This will help to keep the disingenuous acceptances down to a minimum.

As stated in the NPRM, Vol. 76 No. 53

“The Department proposes to define temporary need as less than 9 months, except in the case of a one-time occurrence. The definition is in keeping with the DHS definition of temporary need, in which the ‘‘period of time will be one year or less, but in the case of a one-time event could last up to 3 years.’’ 8 CFR 214.2(h)(6)(ii)(B). The Department believes its proposed time period is an appropriate interpretation of the ‘‘or less’’ limitation contained in the DHS regulations, a limitation it has always previously applied in this program. This interpretation is necessary to ensure that the program is available only for employers with truly temporary or seasonal needs. The current approach that permits temporary certifications for periods up to 10 months encompasses job opportunities that the Department believes are permanent in nature and not consistent with Congressional intent to limit H–2B visas to employers with temporary or seasonal needs. If work is performed during all four seasons of the year, either it is not temporary or seasonal, consistent with statutory intent, or it is not the same work (for example, landscape workers who also perform snow removal duties) and thus would require separate applications. Employers that have recurring needs that are longer than 9 months should not have access to the H–2B temporary worker program for those job opportunities”

It is our understanding that the “or less” definition was clarified in several cases: As is stated in the Grand View Dairy [OALJ No.: 2009-TLC-00002] decision and order, page 5 (of which I will only partially quote), “the rulemaking reveals that the Departments interpretation of the word ‘temporary’ under the H-2 provision is intended to be consistent with the common meaning of the word “temporary”, and to have the same meaning for both H-2A and H-2B purposes.” In the Matter of Artee Corporation, 18 I&N (Dec. 366) provides that the test for determining whether an alien is coming “temporarily” to the United States to “perform temporary service or labor”, is whether the need of the petitioner, for the duties to be performed, is temporary. It is the nature of the need, not the nature of the duties that is controlling. Keeping with both of the above referenced cases – if the temporary need is to be “mandated” by USDOL regulation changes to 9 months for H-2B then we should be watching for the change on H-2A as well. Further –if the regs are changed to 9 months it will no longer be the “nature of the [employer’s] need” that will be served. I would argue that a Landscaper in upper New York has a different need date then a Landscaper in Dallas, TX. If you take into account when leaves bloom out and when leaves die and fall based on the climate (distance from the equator) rather than the date on a calendar. If you further look at dates on when to plant bulbs, annuals, trim trees or any number of tasks that are dependent on climate you would find a difference of 30 plus days. Where 9-months might work in some parts of the country for some jobs; they might not work in others. It seems some employers would be put at a disadvantage with this arbitrary 9-month change. US DOL has not explained why they would make the change to 9 – months other than a calendar date of when the seasons start and end – which is not a true test of when an employer’s need starts or end. Further, looking at the definition of peakload from 8CFR 214.2 “( 3 ) Peakload need. The petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.”. The definition does not state “season of the year” is the only basis for temporary – it also states “or short-term demand” – it has been a standard practice that if the need is predictable and recurs annually – basically that a predictable event predicates the need it is acceptable. It seems USDOL is trying to override that definition.

“Corresponding Employment” requirements appear to be overreaching and need to be more narrowly defined. As defined, it could be considered Corresponding Employment if the owner of a Landscape company joined his H-2B workers to plant a flower – his workers should be entitled to the same benefits and pay that he enjoys as the owner or president because he performed a task that was on the job order for the H-2B workers. I know that is a bit far-reaching, however – worker pay ultimately should be based on production, not simply on specified task. This requirement takes the production factor out of the equation completely. We believe Corresponding Employment requirements should be removed from this regulation completely.
The comprehensive statement submitted and supported by 15 H-2B program agents contains the balance of issues we have with the proposed rule. I thank you for the opportunity to submit my opinions and pray that each and every statement made in favor of and against the proposed rule changes is appropriately weighed and the possible ramifications to workers (both domestic and foreign) and businesses (small and large) will be seriously considered.


Lori A. Whitten


Action International, Inc. dba Action Visa Assistance

Wednesday, May 11, 2011

Mr. President - They are playing by the rules – why aren’t they flourishing?

At a LULAC Convention on Tuesday, July 8, 2008 Hispanic advocates discussed with Presidential Candidate, Obama their wish for a “comprehensive package that offers a path to citizenship for illegal immigrants. Mr. Obama explicitly promised to enact such a measure by the end of his first term as president”, as reported in “Immigration comes to fore for duo”, Dallas Morning News – July 9, 2008. Was it a sincere promise, or was it political rhetoric in order to attract the large Hispanic voting public? It’s hard to say; according to the PewReseachCenter “Obama carried (in the November 2008 Presidential election) the Latino vote by sizeable margins in all states with large Latino populations”.  President Obama is back on Immigration Reform – and it’s about time, you can read about it in today’s Dallas Morning News: “Obama: It’s time to tackle immigration” – weird that he waited until he was on the campaign trail again to bring it back up. Is it sincere or is it political hype for votes? I have not a clue that is for you all to decide at election time.

Here is what I know - Immigration is the world I live in every day. The heartbreak of it for both the small business (and farm) owner that counts on their temporary workers for the profit part of their business, the domestic workers – that know without the temporary workers they would not have a job to go to, and finally - the LEGAL temporary non-immigrant worker that knows their only chance of making a better life for their family is his temporary U.S. job. I know what I believe – I fight for it, see it, hear it, eat it, breath it and pray for it every day of my life.

In the Presidents Inaugural speech on January 20, 2009 he said “And we should continue the work of fixing our broken immigration system -– to secure our borders and enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation.” His speech was approximately 7400 words – and he devoted 39 of those words to “our broken immigration system”. Let me focus on his words for a moment - “ensure that everyone who plays by the rules can contribute to our economy and enrich our nation”. What was he talking about – those I know that have been playing “by the rules” are punished by being forced to jump through ever shrinking hoops that are about to be rimmed in fire. Many Small Business men and women that are playing “by the rules” are not flourishing-they cannot “contribute to our economy and enrich our nation” because they are barraged with more and more burdensome and onerous regulation.

Little has been said or done in regards to Immigration Reform since President Obama’s inauguration – a lot however has been done and is proposed to be done to dismantle the one and only means by which non-agricultural small business owners can hire LEGAL non-immigrant workers. The H-2B program is under attack, yet again - ( Summary of Notice of US Dept. of Labor NPRM). I hope you will take the time to comment on this proposed rule change in support of your law abiding small business owning neighbors, families and friends that count on the program for their short term labor demands. These are the front line businesses that face uneven playing fields in competition when bidding against like business that hire illegal labor (estimated at between 11 and 20 million). The deadline to comment is May 17, 2011, your comments make a difference please visit this website and make a statement in support of your neighbors.  Ask that the current H-2B program be left in its current condition.  

Thank you, Lori