Labor
Dept. Issues New Rules for Guest Workers
Published: February 10, 2012 - New York Tiems
The extensive
rules — 575 pages long — make important
changes across the program, which is known as H-2B. The changes were hailed
by advocates for guest workers, who said they would make it more difficult for
businesses to exploit vulnerable foreign migrants and hire them to undercut
Americans.
But reflecting the divisions over the program,
employers who use it regularly said the new rules, which will take effect April
23, would make the process too slow and cumbersome for their seasonal businesses
and would ultimately lead to the loss of American jobs.
“This is another log in the road to derail the whole
industry here,” said Jack Brooks, a crab processor from the Chesapeake Bay in
Maryland who is a member of a group of employers in the H-2B program, the
Coalition to Save America’s Seafood Industry. “If you take the seafood people
away, tens of thousands of American jobs are at risk,” Mr. Brooks said.
The H-2B program has long been used by many kinds of
seasonal, mostly small, businesses, including seafood fishermen and processors,
amusement parks and hotels and landscapers.
Under the new rules, the Labor Department will create
a nationwide electronic registry where employers must post all jobs they are
seeking to fill with H-2B workers. Also, the recruitment period of Americans is
expanded, requiring employers to hire any qualified local worker who applies up
to three weeks before the start of an H-2B contract.
The Labor Department also ended a labor market
certification process that allowed employers to simply assert that they had
searched for American workers. Now employers will have to consult formally with
State Workforce Agencies to demonstrate that they could not find Americans for
the jobs.
Employers will be required to pay a guest worker’s
transportation costs from the home country after the migrant completes half of
the contract period. Employers will also have to pay for the trip home when the
worker finishes the job or is dismissed early, as well as all visa fees.
For the first time, employers will be required to pay
foreign workers for three-quarters of the period of a contract, even if there is
no work for the migrants to perform. This provision was greeted by employers
with particular alarm.
The rules will “ensure that the program is used as
intended by making these jobs more accessible to U.S. workers and providing
stronger protections for every worker,” Secretary of Labor Hilda L. Solis
said in a statement.
“Over all, we think these rules are a huge step
forward,” said Jennifer J. Rosenbaum, the legal director of the National Guestworker Alliance,
which is based in New Orleans. “They remove incentives to try to get around
hiring an unemployed American by hiring exploitable guest workers instead.” She
pointed to new provisions ensuring that migrants can raise complaints and
consult with unions over work conditions without retaliation from employers.
The rules sharpened the different perceptions between
Labor Department officials and H-2B employers over the availability of Americans
for the jobs they are offering, which involve low-wage, often strenuous work.
“We would love to have it like we had it back in the
1960s and 1970s when we had all the American workers we could get,” said Mr.
Brooks, the crab processor. “Now our search for American workers is
never-ending. At the end of the day we can’t find local workers.”
The rules bar foreign recruiters from charging fees to
workers who will come to the United States under the H-2B program. The Labor
Department is seeking to eliminate foreign recruiters who saddle migrants with
debts before they arrive in the United States, which workers struggle to pay off
on their wages here.
Last year, employers won one round in the H-2B fight
by appealing to Congress about a separate set of Labor Department rules on wages
in the program. Employers, who argued they would be forced to more than double
wages, persuaded Congress to pass an amendment that blocked them from taking
effect at least until October.