How work visa policies evade public oversight

Daniel Costa at the Economic Policy Institute covers H-2B visa and other immigration issues. His reporting in June on H-2B, a temporary guest worker program for low wage manual workers, shows how Congressional leadership is captured by private sector efforts to weaken program oversight. He uncovers an example of why immigration policy evades real oversight.

His FAQ on the H-2B program is here.

U.S. Senate Subcommittee of the Judiciary Committee on Immigration and the National Interest is chaired by one of the most vocal critics of generous immigration policies, Senator Jeff Sessions of Alabama. Costa writes that the 2015 appropriations provisions which became part of the 2016 omnibus appropriations bill prevent the Labor Department from enforcing the H-2B law against bad-actor employers. H-2B employers and their lobbyists hope to expand an exploitative temporary foreign worker program by hijacking the appropriations process once again, as they did last year.

Who is hired?

Landscapers/groundskeepers account for about 40 percent of all H-2B jobs. The second-largest occupation is forestry workers, at about 8 percent. The visa is officially set for only nine months. Congress sets an annual limit of 66,000 H-2B visas a year, but exemptions and extensions means that several hundred thousand H-2B visas holders may be in the United States today. Texas, North Carolina and Florida have the highest concentration of H-2B workers.

What is a labor shortage?

H-2B visas are supposed to be issued only where there is a labor shortage. Philip Martin from the UC-Davis and Martin Ruhs from Oxford assert that industries and occupations reporting labor shortages should have (1) rising real wages relative to other occupations, (2) faster-than-average employment growth, and (3) relatively low and declining unemployment rates.

“Scant evidence of labor shortages”

While seven of the top 15 occupations experienced employment growth that exceeded the 5.5 percent increase for all occupations, the fact that wages were stagnant or declined, combined with persistently high unemployment rates, makes it highly unlikely that labor shortages exist at the national level in any of the top H-2B occupations. This does not mean that no labor shortages exist anywhere in the United States in these occupations—it is entirely possible and even likely that shortages exist in some states or localities—but the high national unemployment rates in H-2B occupations suggest that even the employers experiencing a local labor shortage might find available U.S. workers if they recruited outside their city, region, or state, and if they offered more attractive wages and benefits (including transportation and housing).

Manipulations authorized by Congress

Congress is considering provisions (also known as riders) to the omnibus appropriations bill that will fund the government for all of fiscal year 2017, which would extend riders amending the H-2B program that are currently in force during fiscal 2016. These riders deregulate the program by making it easier to exploit and underpay migrant workers while restricting the access of U.S. workers to jobs in their own communities. The riders also expand the program, allowing it to as much as quadruple in size. Members of Congress hijack the appropriations process because there isn’t enough political support to pass the H-2B riders as a standalone bill.

1. Expanded use of private wage surveys

Employers will likely be permitted to use private wage surveys in a much broader range of circumstances, and this may result in H-2B workers being paid wages that are below the Dept. of Labor’s occupational employment local average wage for their jobs…..the likelihood that private wage surveys will push down average H-2B wage rates to below-average wage levels will be very significant.

2. Returning worker exemption increased

The exemption allows for returning workers not to be counted against the 66,000 cap. Proposals to increase the number of exempted workers could cause the number of exemptions to quadruple.

3. Corresponding employment controls gutted

DOL has been prohibited in fiscal 2016 from using appropriated funds to enforce H-2B regulations that require “employers of H-2B workers to provide at least the same wages and other working conditions as they provide to H-2B workers to certain U.S. workers performing substantially the same work identified in the labor certification or performed by the H-2B workers.” It also requires that H-2B employers offer their corresponding U.S. workers the same benefits offered to H-2B workers, for instance, paid meals, transportation, or housing.

Under the appropriations rider, DOL may not use funds appropriated in fiscal 2016 to enforce the rule on corresponding employment. It is interesting to note that no senator or representative has publicly articulated the basis for denying U.S. workers the same wage rates and benefits offered to H-2B workers in the appropriations legislation.

4. “Three-fourths guarantee” made toothless

Each employer must guarantee each worker a total number of paid work hours equal to at least three-fourths of the workdays in the job order that induced the workers to come to the U.S. Without this rule, H-2B workers could come to the United States for a temporary job opportunity, only to find that there are not enough work hours to allow them to earn enough to break even. Under an appropriations rider DOL may not use any funds appropriated in fiscal 2016 to enforce the three-fourths guarantee. H-2B workers are greatly harmed when they do not have enough work hours to earn enough to live, save, and pay back the debts incurred to labor recruiters in order to obtain their job.

5. Prohibition on DOL conducting audit examinations and assisted recruitment activities

The Consolidated Appropriations Act of 2016 also prevents DOL from using funds to audit H-2B applications or to conduct audits or assisted or supervised recruitment. Many migrant and worker advocates have been consistently disappointed with DOL’s failure to enforce regulations and requirements of the H-2B program. This particular H-2B appropriations rider strikes at the heart of the integrity of the H-2B program. If DOL cannot audit employers to enforce the basic premise of the H-2B program—that H-2B workers should not be hired unless there are no U.S. workers available—then employers may simply bypass the U.S. workforce for any and all H-2B job openings.

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