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Employer criticisms of new immigration rules are not credible

The Department of Labor (DOL) just issued new rules for the H-2B guest worker program, a temporary foreign worker program for jobs outside of agriculture that don’t require a college degree. The new rules will help put unemployed Americans back to work. This is especially true for those hardest hit by the recession: young workers and those with a high school diploma or less. The rules help prevent corporate greed from trumping the needs of the unemployed and simultaneously protect the most vulnerable immigrants in our workforce.

Unfortunately, employers that hire H-2B guest workers are lobbying Congress to kill or suspend the new rules, and they’re likely to challenge them in the courts, too. Rodney Alexander, a House Republican from Louisiana, has already proposed a joint resolution that would nullify them. Why? Because employers claim it is too difficult to fill job openings with U.S. workers, and that the new H-2B rules are so burdensome they will devastate entire industries. These are bogus claims: there are millions of available U.S. workers and the new rule’s requirements are modest.

Employers will now be required to certify that they actively recruited local workers and to document those efforts. Under current rules employers merely “attest” they did so, which means DOL and the public have to just take their word for it. But a recent Inspector General report found that employers regularly lie about their recruitment efforts, and the U.S. Government Accountability Office has documented serious cases of fraud and abuse.

{mosads}Employers will have to place an ad for a job in the classified section of the local newspaper for two days and submit a copy to DOL for the record. They’ll also have to post the job opening in two places at the worksite for 15 consecutive days and keep records on any U.S. applicants they reject. But state workforce agencies will help do some of the recruiting, for example by contacting local unions to inquire about available workers.

H-2B employers are irritated that they will have to continue to accept applications from qualified U.S. applicants for a job opening up until three weeks before the work is scheduled to begin, even if they’ve already applied for an H-2B worker. If that’s a burden, it’s a fair one.

The other rules that H-2B employers complain about includes the employers’ new responsibility to pay all visa fees and travel costs, and to pay for any tools or equipment required to perform the assigned job duties. Is this unreasonable? The supplies used to complete the work ultimately benefit the employer. It would be unfair to require an H-2B worker – who in most cases is earning at or near the minimum wage – to cover these costs.

Finally, each employer must now guarantee each worker a total number of paid work hours equal to at least three-fourths of the workdays in the job order. The U.S. Chamber of Commerce calls this “completely unrealistic” because bad weather might impact work hours. No, what’s unrealistic is to recruit a worker from abroad to earn near-poverty wages and then not guarantee him at least 75 percent of the promised work.

So when employers claim – as a member of a seafood industry trade group has – that these rules (which both U.S. workers and foreign guest workers support) will “derail the whole industry” and jeopardize “tens of thousands of American jobs, ” take those claims with a grain of salt. 

The vast majority of H-2B jobs don’t require advanced skills or education. They include jobs that require only a few days of training: working in restaurants and hotels, at amusement parks, doing building maintenance, or landscaping. These jobs could – and should go first to unemployed young workers, who currently have a 16 percent unemployment rate, or to workers over 25 who don’t have a high school diploma, who have a 13.1 percent unemployment rate. Congress should not attempt to exclude them from these jobs at the behest of H-2B employers.


Costa is an immigration policy analyst at the Economic Policy Institute.


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