shutterstock_191505380Businesses that rely on seasonal, nonagricultural labor have had a hard time recruiting US workers as the economy has improved and overall unemployment and underemployment have fallen. These businesses — from seafood producers in Louisiana, Alaska and Maryland to resorts in Colorado and Maine to landscaping companies all over the U.S. — have relied on the H-2B visa program to supplement their US workforce during their seasonal peak loads. These businesses are trying to use a program that promotes legal workers coming from Mexico and other countries where a season working in the US can provide meaningful support to families, which also reduces pressure to immigrate illegally.

Unfortunately, a court fight about the program’s regulations has shut it down completely as of earlier this month. The H-2B program operated for decades without a formal regulatory framework, relying on informal guidance and practices in place since the program was first created. In 2008, United States Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) issued regulations to codify some aspects of the program and change others to make it more user-friendly.  By making it easier to hire legal workers from abroad if US workers were unavailable, DOL and USCIS hoped to reduce the pressure on businesses to hire illegal workers to meet their labor needs.

These regulations were challenged in court by worker’s rights groups, objecting to parts of the regulation dealing with how the minimum wages for workers in the program were set. New regulations were proposed by DOL in 2010 to address the wage issue and were to have gone into effect in 2012, but appropriations riders have prevented it from doing so and litigation continues, incorporating additional challenges to this rule.

The present impasse has resulted in a complete shutdown of the H-2B program, an unprecedented situation that has businesses and the workers they were planning to bring to the US in a bind. Since one appeals court held that DOL could not allow employers to use private wage surveys to determine the minimum wage to be offered, and another appeals court went further to hold that DOL had no authority to make rules about the program at all, DOL and USCIS both said they were unable to operate the program and ceased taking new applications, just as employers were gearing up for the summer season.

Over the weekend, it came out that the Department of Homeland Security (DHS) and DOL are rushing through the process of a new rulemaking that will be issued jointly, likely in response to the appeals court order that DOL has no independent rulemaking authority over the H-2B program. An Interim Final Rule would allow processing of applications to be restarted. No matter what the rulemaking says, however, chances are good that either the business or worker groups or both will be unhappy with parts of it, so litigation will continue.

Is there a better way? The H-2B program only applies to nonagricultural employment, and similar strife between growers and worker advocates made rulemaking for the H-2A program for temporary agricultural workers difficult. Because of the strong demand for immigrant labor in the agricultural industry, however, the need for an updated statutory framework for H-2A was recognized in the early 2000’s, when discussion of the bills that eventually became the Senate’s 2005 comprehensive immigration reform bill began. At that time, recognizing that both business and worker groups would have to support the statutory framework in order for it to have any hope of passing, they joined together to work with a bipartisan group of legislators to craft what became known as the “AGJOBS Bill.” By working together growers and worker groups were able to craft a statutory framework that both sides were comfortable supporting, though neither side got everything it wanted.

Given the current tension between seasonal businesses and the worker groups, perhaps the time has come to step out of the courtroom and come to the negotiating table. Coming up with a compromise framework will not be easy – but then many said the growers and workers would never be able to agree on AGJOBS. Indeed, at this point the result need not even be a statutory framework (which is fortunate given that AGJOBS has not been able to pass separately from broader immigration reform). Because an interim Final Rule will have to be open for notice and comment by the public, a negotiated rulemaking between the agencies and a unified, compromise regulatory framework supported by both businesses and worker groups will put an end to the litigation and provide a sound framework for a temporary worker program that protects job opportunities and wages for US workers seeking seasonal work, while giving access to legal temporary workers to businesses who have been unable to find such US workers.

A functioning H-2B program is in America’s interest. Such a program promotes a legal workforce, supports jobs in the US, and grows the economy. While comprehensively reforming the immigration statute will be difficult, coming together to support regulatory reform for the H-2B program should be something businesses and worker groups can join in together.

By William Stock, AILA First Vice President

Updated 3/18/2015