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Agency Freeze on Extra Seasonal Visas Leaves Employers in Limbo

April 8, 2020, 9:31 AM

The federal government’s decision to pause tens of thousands of additional visas for non-agricultural seasonal guestworkers means businesses that rely on those workers now face coronavirus-induced labor uncertainty in what should be their peak season.

“We are still desperately in need of those supplemental visas—Covid-19 hasn’t changed our number of applicants for H-2B workers at all,” said Danielle Bane, co-owner of Quality One Inc., a landscaping business in Havre de Grace, Md. “They told us they would send us relief and then they took it back because of this crisis, and I don’t see how the two are related. Landscaping didn’t get shut down, and we make up 50-some percent of the H-2B employers.”

H-2B visas are capped at 66,000 each fiscal year and split evenly between two seasons. Demand is so high that the Department of Homeland Security has approved supplemental visas for the last several years. The agency announced April 2 that 35,000 extra visas that had been approved for the busier summer season this year would be put on hold indefinitely due to “present economic circumstances.”

Some companies, such as Bane’s, that rely on seasonal guestworkers could be hit harder by the hold-up than others, according to businesses and industry trade groups. A lack of details from the agency on whether or when the additional visas will be made available has created uncertainty for businesses in how best to navigate the coming months. The DHS said it plans to focus efforts on “measures to protect American workers now and when normal economic activity is able to resume in the future,” and had no additional comment.

Need for Workers Is Real

The holding pattern “shows the lack of understanding the government has of how the H-2B program is essential to the economy,” said Jeff Joseph, an attorney with Joseph & Hall in Aurora, Colo., who represents companies that employ H-2B workers. Some industries are operating as usual “regardless of the pandemic,” he said, and need workers going into the summer and fall.

“Without clear, transparent information from the government on how long this shutdown is going to last, those people still need the workers,” he said, adding that his clients that employ H-2B workers—including resorts, landscaping companies, and outdoor-adventure operators—haven’t been laying off workers.

Part of the reason for that is the pandemic is affecting each sector that relies on H-2B workers differently, said Gray Delany, executive director of the Seasonal Employment Alliance, an H-2B advocacy group representing more than 2,000 employers that use the program. For example, amusement parks are shut down, and many hotels are relying on reduced staff, but landscapers and the seafood processing industry still have a need for workers, he said.

Supply and Demand

While some demand for workers going into peak summer season may be eliminated by the public health emergency, seasonal employers coping with the H-2B freeze could be a boon for U.S. workers who have been laid off due to the pandemic.

The government could take a more active role in matching laid-off workers with H-2B employers experiencing shortages, Joseph said. But he noted industries like landscaping have traditionally found few American-born workers willing to do the job.

Joe Drake, president of J.F.D. Landscapes Inc. in Cleveland, didn’t get any of the H-2B workers he applied for in the program’s lottery in January. “I always knew at some point that we weren’t going to get our visas; it was just a matter of time,” Drake said.

As a result, he had to trim the number of clients his business would take on for the summer maintenance season. He said he also has made an effort to recruit workers who were recently laid off.

Now, he said, the uncertainty his business faces cuts both ways. First, his labor concerns are compounded by his fear that some of the clients he didn’t turn down won’t be able to keep paying for his services as the economic shock of pandemic spreads. But he also worries that if the economy begins to rebound before the season is over, previously laid-off workers will want to go back to their old jobs, “and we’ll be left without employees.”

“We just don’t know how bad the virus is going to affect the economy,” he said. “Everyone was coming off of a great 2019 and was hit with a ton of bricks.”

‘Impossible to Make the Argument’

The wave of unemployment triggered by the coronavirus undermines the premise of the H-2B program, which is meant to supplement the needs of seasonal non-agricultural employers when they can’t find domestic workers to fill jobs, said Jessica Vaughan, director of policy studies for the Center for Immigration Studies, an organization that supports lower immigration levels.

“There are so many U.S. workers who have lost their jobs that it’s impossible to make the argument that we have a shortage of workers,” she said.

Now could be an opportunity, she said, for the federal government to tell H-2B employers that were counting on visa workers to look to states that are seeing especially high unemployment claims due to the pandemic.

If those businesses normally are willing to provide visa workers from overseas with transportation and boarding, then they should be willing to do the same for U.S. workers who might not have considered seasonal work in the past, she added.

Vaughan noted, however, that DHS didn’t shut the door on additional H-2B visas still being made available in the future.

“DHS isn’t saying, ‘No, they won’t do them.’ They’re kicking the can down the road,” she said. “That concerns me, because it’s hard to imagine that the job losses and economic dislocation is going to be cured anytime soon.”

Future Solutions?

Tailoring the H-2B program’s visa limits to economic trends was one recommendation the U.S. Government Accountability Office included in a new report on the guestworker program.

The congressional watchdog urged U.S. Citizenship and Immigration Services and the Labor Department “to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide when given this authority by Congress.” The report was released April 1, but analyzed unemployment data and H-2B visa demands between 2010 and 2018.

Aligning the program’s visa count with economic indicators such as unemployment could be helpful to H-2B employers, Delany said. Relying on those kinds of economic statistics, though, could present new problems because they’re lagging indicators. H-2B employers usually apply for workers about 90 days before their start date, Delany said.

“At what point would the government set the number of visas for the next year? In the fall? Unemployment would be way different than in the spring/summer,” he said. “Look at the Covid-19 situation—unemployment can change on a dime.”

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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