Every summer, businesses across the Cape and islands rely on a wave of foreign workers entering the country on H-2B visas to fill jobs that would otherwise go unfilled, particularly once college students return to school. For large and small employers, it is a critical part of the spring hiring cycle of preparing for another season.
On March 4 a judge in the federal district court in the Northern District of Florida ruled that the Department of Labor (DOL) lacked authority under the Immigration and Nationality Act to issue regulations in the H-2B program. The judge’s ruling brought the processing of H-2B visas to a screeching halt, and left many businesses owners across the Cape and Islands in a considerable bind.
“I’ve hired 11 H-2B employees for the coming season; that’s half of my staff,” Wesley Hotel owner Peter Martell said. “The approval process takes six to eight weeks. I need them to start showing up in late April. But now their applications are all sitting on a desk at the regional processing center in Vermont. I don’t know when they’ll be able to get here.”
Mr. Martell said he, like many other Island business owners, relies on H-2B workers in part because American college students head back to school in mid-August, the height of the tourist season.
Under the H-2B program, an employer may hire a resident of a foreign country “for temporary service or seasonal labor if there are not enough U.S. workers who are able, willing and qualified to do the temporary work,” according to the Department of Homeland Security web site.
Congressman William Keating, who represents the Massachusetts 9th district, which includes the Cape and islands, responded to the ruling with a March 10 letter to the director of U.S. Citizenship and Immigration Services (USCIS) Leon Rodriguez and to U.S. Department of Labor (USDL) Assistant Secretary Ms. Portia Wu, imploring them to resolve the matter quickly.
“For many small businesses in the Ninth Congressional District of Massachusetts, this delay in processing and approving the H-2B applications caused by this ruling will have an irreparable impact on their ability to meet the high-demand of the upcoming summer tourism season … It is my request that you work to immediately rectify the harm that will be caused by a continued H-2B processing delay by moving forward expediently with the pending and approved applications.”
On Wednesday, Mr. Keating’s office announced a stay in the judge’s order that will allow processing to continue. In the meantime, federal authorities are working on rule changes that would ease the crisis.
Businesses in a bind
The H-2B visa is good for nine months, and can be renewed for up to three years. There is also a J-1 work visa, which allows foreign workers under 28 years old with a working knowledge of English to come to the U.S. with three months’ work time, and one month’s travel time. Mr. Martell said he has hired three employees on a J-1 visa for the peak of the summer season, but they in no way can compensate for the loss of H-2B employees.
“First of all, they can’t stick around long enough,” he said. “Second, they tend to be younger and less responsible; they want to make some quick money and travel around. But we need people in the shoulder seasons.”
Restaurateur Doug Abdelnour, co-owner of Nancy’s and 20 by 9, also expressed concern. “We’ve always struggled to find help,” he said. “If this isn’t resolved soon, it will be a huge detriment to our business. It’s not just the financial aspect. A lot of the people on H-2Bs have been coming back for years. They’re like family to us.”
Asked about the possibility of workers on J-1 visas filling the void, Mr. Abdelnour concurred with Mr. Martell. “We haven’t had great luck with the J-1s,” he said. “They tend to not be as mature as the H-2B workers, who are adults with specific trade skills.”
Per state guidelines, a job has to be advertised in the newspaper and at the state job bank for 21 days before foreign workers can apply. Mr. Martell said this advertising has elicited minimal response from American job seekers.
“Last year I had one inquiry from the state job bank, and he never showed up for the interview. Most of the people I’ve hired on H-2B visas have been hard-working, responsible employees. They help me open up the place, and they can stay through the end of October. I’ll be in a helluva bind without them.”
Nervous clients
In a conversation with The Times on Tuesday prior to the announcement of the stay, Mark Carchidi, attorney with Antioch Associates in Yarmouth Port with 19 years H-2B experience, and more than 150 clients, most of them very nervous, said the most likely course of action was for the DOL to appeal the decision or ask the judge for a stay of enforcement while the appeal is pending.
“I would think if the judge realized the significant impact of the decision, he might consider a stay order,” Mr. Carchidi said.
On Tuesday night, Mr. Carchidi’s words proved prophetic, as the DOL filed an unopposed motion to stay the Florida court’s decision, allowing the DHS to resume processing the H-2B applications until a further review on April 15. However, DHS will not resume “premium processing,” which expedites the application process to a maximum of 15 days at an extra charge to the business owner. Mr Carchidi said that the stay in the decision still puts the processing back two weeks. After applications are approved, the applicants still have to go to the American embassy in the country, which can take some time to arrange. “There’s no sigh of relief yet,” Mr. Carchidi said. “An employer can’t relax until they know that person is on the plane.”
On Wednesday morning, Mr. Keating updated The Times. “I’ve called the White House myself, and have had several conversations. The good news is the Department of Labor acted immediately and filed for a stay in executing the decision, and so far no one has opposed it. But that could change minute to minute. The other good news is Homeland [Department of Homeland Security] is going ahead doing the administrative work so that they’re not falling farther behind. DOL and Homeland are doing what they can do administratively absent the final approval, so they don’t fall behind. Things are progressing in the right direction, quickly.”
Mr. Keating is a member of the congressional Homeland Security Committee.
“We’re working very hard to impress upon the administration that every day is important, every week is critical, and it affects the narrow window our seasonal businesses have to make a profit.There’s somewhere between 1,500 and 2,000 H-2B visas that have to be approved for businesses on the Cape and islands.”
No prospects
Gabriel Perez, a busboy in the Palm Beach, Fla., area and a U.S. citizen, filed the suit Perez v. Perez against DOL Secretary Thomas Perez in December 2014. He claimed that his job prospects were adversely affected by workers on H-2B visas, because they were taking jobs that were not advertised, for which he would have applied. In addition, he claimed that H-2B workers were paid $10 an hour for the same job he was paid to do for $8 an hour; and that the DOL criteria for determining if unemployed American workers were available for the job were faulty. He also challenged the change made by the DOL in 2008 that allowed H-2B workers to extend for up to three years, instead of the previous two years.
“As Perez argues, and DOL does not dispute, the 2008 regulations substantially reduce the recruitment efforts that employers must make in order to establish that United States workers are not available, thus making it easier for employers to replace available United States workers with foreign workers. As reflected in his affidavit, the consequent loss of prospective job opportunities has injured Perez, and will continue to do so, unless and until the Court awards the injunctive relief he requests,” court documents state.
