There is light at the end of the tunnel for landscaping employers who depend on temporary foreign workers through the H-2B visa program. The suspension of H-2B visas, which includes landscapers, expired March 31.
In an April 1 announcement, the U.S. State Department announced that visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing Visa Services Operating Status Update guidance. Visa applicants who were previously refused visas, may reapply by submitting a new application and including a new fee.
In order to hire foreign workers through the H-2B visa program, which is a lottery system due to the high number of applicants, companies are required to prove they are not displacing local help and that they have looked first to hire within the U.S.
To that end, various trade groups for industries that hire temporary foreign workers, including landscaping companies, contend that the need for workers far exceeds available and willing U.S. workers. And while students are sometimes an option, landscaping companies often need help before school gets out and after classes resume. Finally, they say, Americans simply don’t want the jobs that foreign nationals fill through the programs.
According to Gene Schaeffer, an attorney with Milwaukee-based law firm Godfrey & Kahn, S.C., “The biggest advantage [of the H-2B program] is having a pool of workers that are available, and also that they are experienced.”
The number of available H-2B visas to be issued on an annual basis is capped at 66,000 per fiscal year. That total is divided into two parts: 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31), and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – December 31).
Because the demand for temporary workers is usually at its peak during the summer, there are more applications for the April to December period. Over the last few years, the U.S. Citizenship and Immigrations Services (USCIS) has implemented a lottery for this period, meaning that only a portion of the applications will be selected for review.
According to Scott Grams, executive director of the Illinois Landscape Contractors Association, because the June 2020 H-2B visa ban was imposed so late into the 2020 season, it did not have as serious an impact on most companies. The bigger issue, Grams explained, was the decision the administration made not to release any of the supplemental visas, a practice that had been upheld year after year.
“Previously, the government would take a look at the number of unfulfilled visa requests and based on what level of need they were seeing they would release more visas at their discretion, sometimes as many as 35,000 more,” Grams said. “In the spring of 2020, when the pandemic hit, those supplemental visas went away, and those guest worker employers who were either frozen out of the lottery or had relied on the supplemental visas had to just limp along.”
When the H-2B visa lottery resumes, Grams said employers will jump at the chance, regardless of the time of year.
“Most of these landscaping employers are used to working under really tight deadlines with things being very last minute, whether it’s visa approvals or the release of supplemental allotments,” Grams said. “It used to be if you had your stuff together, you’d be OK. And while the lottery was created to help make the process more equitable, it definitely has caused a lot of disruption for employers.”
The extreme amount of paperwork involved in the application process is also an issue. So much so that many employers hire consulting firms to help facilitate the application process for their guest workers seeking to obtain H-2B visas.
“These labor consultants have become essential to navigating the application process and we highly recommend using them because it’s just too important to risk a screw up due to clerical error,” Grams said.
Stephen Ward is a business integrator at employment consulting firm Labor Consultants International (LCI), based in Coeur d’Alene, Idaho. LCI provides a comprehensive “turnkey” service to employers seeking to hire temporary nonimmigrant workers through the H-2B visa program.
Like Grams, Ward said that there are significant benefits to using an employment firm to manage the visa application process. The hiring of H-2B workers is a complicated and expensive process requiring approvals from three federal Departments — The U.S. Dept. of Labor, The Dept. of Homeland Security/USCIS and the Department of State, Ward explained.
“This isn’t a program where one can simply read the regulations and make it through the process,” he said. “The pressures from government shifts, lobbying, activists, fluid legislation and legal proceedings keep the entire process mired in slightly everchanging procedures.”
Ward added that for employers of short-term workers, it’s not just about getting the needed workers for the season but making sure that if a landscaper employer is audited, it is operating in compliance with the regulations.
Finally, Ward explained, the limited number of visas has been repeatedly proven to be insufficient even during the pandemic. Most users of the H-2B program are small employers who document that there are not enough legal local workers available for their jobs.
“These employers require temporary workers to avoid devastating financial harm,” Ward said. “This is the legislative intent of the [H-2B] program and it is these small businesses that will help revive our economy with the assistance of the temporary workers.”