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Government Affairs: Congress comes through with H-2B Band-Aid… will rip it off in nine months

January 4, 2016 -  By

In my December blog, when I listed H-2B guest worker program reforms as one of Congress’ pieces of unfinished business for landscape contractors, I had very little hope that anything would pass.

But thanks to the hard work of our national associations, AmericanHort and the National Association of Landscape Professionals (NALP), language providing H-2B relief was included in the federal FY 2015-2016 omnibus spending bill. President Obama signed that bill into law on Dec. 18 last year.

Major H-2B Victory

This was a major victory. The H-2B provisions faced stiff opposition from anti-immigration forces that included an alliance of far right Republicans and labor-union-supporting Democrats. Further, President Obama had threatened a veto of any spending bill that contained so-called “policy” provisions.

Given the political opposition, it’s astounding that AmericanHort and NALP, with the strong support of their members, were able to pull this off. Kudos for their hard, effective work.

The only downside of these reforms is that they are in force for only nine months, expiring with the FY 2015-2016 federal budget on Sept. 30, 2016.

H-2B Reform Provisions

The provisions in the bill include many of the H-2B reforms that the green industry had been seeking for the past several years, plus some more urgent reforms needed in light of the recently issued H-2B regulations. The provisions include:

  • Exempts H-2B returning workers from the 66,000 annual cap;
  • Addresses H-2B wages and allow the use of private wage surveys, which were not allowed under the 2015 final H-2B wage rule;
  • Clearly defines seasonal as 10 months, as opposed to the 9 months in the new interim final H-2B comprehensive rule;
  • Prevents DOL from implementing the provisions of the interim final rule (IFR) related to corresponding employment and the three-quarters guarantee; and
  • Prevents DOL from implementing the new burdensome DOL enforcement scheme in the IFR related to audits and Certifying Officer (CO) assisted recruitment.

Implementation Foot-Dragging?

Since these provisions are in force for only nine months, many fear that the U.S. Department of Labor (DOL) will drag its feet in implementing the new provisions and try to run out the clock until Sept. 30. Already there is evidence that this is happening.

On Dec. 29, the DOL issued emergency guidance as to how it would implement the new provisions. The emergency guidance contains notices that indicate that there may be some bureaucratic stalling between DOL and the federal Office of Management and Budget (OMB), tossing the ball back and forth to draw out the implementation.

Follow Latest H-2B Developments

Both of our national associations are working to try to cut through the bureaucratic red tape to get the reforms implemented as soon as possible. They are also working with Congress to make these temporary reforms permanent. To keep up with their progress and support their efforts, go to their websites AmericanHort.org and LandscapeProfessionals.org.

About the Author:

Gregg Robertson, Landscape Management's government relations blogger, is a government relations consultant for the Pennsylvania Landscape & Nursery Association (PLNA) and president of Conewago Ventures. From 2002 until May 2013 he served as president of PLNA. Reach him at gregg.robertson@conewagoventures.com.

1 Comment on "Government Affairs: Congress comes through with H-2B Band-Aid… will rip it off in nine months"

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  1. While NALP and AmericanHort were indeed vital to the passage of the H2B language in the recent Omnibus spending bill, credit also should go to the consortium of a wide range of H2b users and industries represented by the H2B Providers’ group, the H2B Workforce Coalition and the Small and Seasonal Business Legal Center (SSBLC) who lobbied steadily for the provisions over the past year. All H2B users will have to vocally and aggressively defend this vital industry resource as we move into the new year. The H2B program unfortunately became the target of unfounded and overblown allegations of visa fraud, overstays and worker abuse during debate on the bill. Amazingly, the objections were raised primarily by conservative Congressmen and Senators who, one might assume, should recognize and value the public policy advantages of a structured and accountable guestworker program. It will take focused advocacy to overcome the public relations damage done to H2B by these attacks if we are to achieve meaningful and long-overdue H2B reform in the next Congress. Stay tuned to NALP and American Hort!