H-2B Update

June 17, 2004 - 12:57

A United States District Court Judge ruling on the effort of several Northeastern companies to get temporary foreign workers this year declared the solution to the current H-2B situation had to be sought in Congress.

The companies, led by an American Nursery and Landscape Association (ANLA) member in the landscape industry, asked the Court to raise the number of H-2B visas granted in 2004 by approximately 40,000. The motion originated in a lawsuit brought by eight Cape Cod employers alleging the Massachusetts Department of Workforce Development along with the United States Department of Labor and Citizenship and Immigration Services unfairly prevented them from obtaining the visas they need to increase their staffs during the spring and summer seasons.

The eight companies who filed the federal suit are Brewer Tree and Land Co., Inc., Daylily Farms, Inc., Cars Unlimited, Inc., The Bagel Authority, Inc., Martha's Management, Inc., MV Brothers, Inc., Tropicana, Inc. and BBI Corp., all of Cape Cod and the Islands. In their suit, the businesses said the governmental agencies required that some companies on Cape Cod and the Islands delay their applications for H-2B work visas until fall 2003, four months before they needed the workers. Other types of businesses were allowed to apply in June 2003 and as a result, received most of the available visas, according to the Boston Globe.

"The four and a half months lost between June 1, 2003, when others could begin applying for the visas, and November 15, 2003, when the plaintiffs could begin applying, prevented them from obtaining visas prior to the numerical cap being reached," the lawsuit said.

The plaintiffs also claimed that the agencies violated the companies' constitutional rights to equal protection when they established different application dates for different types of businesses. Under the law, businesses are allowed to apply for the visas 120 days before they will actually require the extra help. The lawsuit alleged that the government agencies wrongly determined that the Cape Cod firms should apply in late fall, four months before the spring season, according to the Boston Globe.

The Companies that filed suit are among hundreds nationwide that have been seeking foreign workers to handle a range of seasonal jobs. Concerns about the visas increased in March after immigration officials announced that no more applications would be accepted because the 66,000 cap on the work permits had been reached.

In response to the Department of Homeland Security shutting down the H-2B in early March, two bills were proposed. The first was the bipartisan "Save Summer Act," proposed by New Hampshire Republican senators Judd Gregg and John Sununu on March 30, 2004. The measure would raise the cap from 66,000 to 106,000 workers for the current fiscal year, which ends September 30. It would also require the Department of Homeland Security to annually report on the status of the H-2B visa program to Congress.

The second bill was the "Summer Operations and Services Relief Act," proposed by senators Orrin Hatch (R-UT) and Saxby Chambliss (R-GA) on March 31, 2004. This measure would carve out from this year's 66,000 cap any foreign worker who used an H-2B visa in 2002 or 2003. According to ANLA, this is the proposal the Bush Administration favored and had the most potential to be enacted. However, the drive to get unanimous consent in the Senate failed when senators Jeff Sessions (R-AL) and John Kyl (R-AZ) raised objections.

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