Big Moves for H-2B and AgJOBS
The American Nursery & Landscape Association (ANLA) announced that the president signed H.R. 1268, the “Emergency Supplemental Appropriations Act,” which provides funding for military operations in Iraq and Afghanistan. This bill also contains the “Save Our Small and Seasonal Businesses Act,” which would provide cap exemptions for service sector guest workers who participated in the H-2B visa program in any of the last three years.
“This legislation was made possible by the tireless grass roots efforts of ANLA members and other service sector employers,” said John Meredith, ANLA’s director of legislative relations. According to Meredith, “this legislation rewards those firms relying on the only legal channel to obtain seasonal help.” The passage of the H-2B legislation means that employers will have access to a foreign labor “safety net” despite the 66,000-worker cap being hit in January of 2005. Employers depend on these seasonal workers to make up shortfalls in the domestic workforce.
According to bill language, employers will be able to file new H-2B visa petitions with the Immigration Service starting May 25. Any worker who has had an H-2B visa in any one of the last three years will be exempt from the H-2B cap (this fiscal year and next). The burden of proof needed to certify that status will fall on the employer. There will be opportunities for new H-2B workers to come and work this year based on the number of exempt workers currently working in the program. Additional instructions on certification, filing dates and special filing requirements, will be issued shortly by DHS. ANLA and other coalition partners are working to ensure that implementation starts as quickly as possible.
Other details of the legislation are as follows:
- The cap fix portion of the legislation provides for equitable distribution of workers subject to the cap by allowing 1/2 of the statutory cap in the country in the during the first six months of the fiscal year and the other 1/2 during the second half of the year.
- Creates an additional fee of $150 per petition to insure against fraud by program users.
- Requires agencies to report certain information regarding the visas to Congress semi-annually.
The legislation, which will provide service sector employers temporary relief from the H-2B program’s statutory cap of 66,000 seasonal workers, was aided by the relentless support of the H-2B Workforce Coalition, a “super coalition” of program stakeholder industries co-chaired by ANLA and the National Restaurant Association (NRA).
In addition to the H-2B success last week, on May 12, Sens. John McCain (R-AZ), Ted Kennedy (D-MA), and others introduced new legislation to comprehensively reform U.S. border security and immigration policies. A companion bill was introduced in the House of Representatives by Reps. Jeff Flake and Jim Kolbe (R-AZ) and Luis Gutierrez (D-IL).
The much-anticipated legislation has two main components related to labor and immigration. First, it would create a legalization program known as H-5B. Under the program, workers in the United States without proper legal status could pay a fine and obtain temporary residency and work authorization for six years. After that, they would qualify to apply for permanent residency and eventually to obtain citizenship. Secondly, the legislation would create a future temporary worker program known as H-5A that would allow foreign workers to enter the United States for jobs that are not taken by domestic workers. They would work under three-year visas and be subject to U.S. labor laws.
“The bills are a welcome addition to the immigration debate, and they offer the general business community much to appreciate,” said Craig Regelbrugge, ANLA’s senior director of government relations. “Many sectors of the green industry would benefit from the reforms these bills propose.”
However, the H-5A program would not apply to agricultural occupations that use the current H-2A guest worker program. The bill’s authors excluded agriculture out of recognition that H-2A reforms already have broad agreement in bipartisan legislation known as AgJOBS (S.359 and H.R.884). “Agriculture is unique. Seasonality and perishability create special circumstances for agriculture that are not well addressed under broad, general-industry legislation,” Regelbrugge emphasized. He explained that under the H-5A program, foreign temporary workers would have full freedom to change employers as often as they wish. If applied to agriculture, such flexibility means an unpredictable labor supply and potential labor shortages at critical planting and harvest times.
As a result, ANLA and other coalition partners in the Agriculture Coalition for Immigration Reform will continue to push the AgJOBS legislation as the unique package of reforms suited for nurseries, greenhouses and other labor-intensive farming and ranching operations. Regelbrugge concluded, “We are grateful for the leadership of Sens. McCain, Kennedy and others toward solving the immigration and labor crisis affecting America. We are also grateful that they are unwavering supporters of Sen. Larry Craig’s AgJOBS legislation. Hopefully, both agricultural and comprehensive reforms can be enacted by Congress this year.”