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In 1999, John Mohns was forced to fire 90 of his 200 employees. The workers were well-trained craftsmen who were moving up in their respective positions. They came in to work on time and were willing to stay late to get the job done. They had long-term potential – some had worked there nine years. 

The problem? They were immigrants accused of using counterfeit documents to gain U.S. employment. And INS ordered Mohns to make some cuts.
 
That year, Mohns, president of $18-million Benchmark Landscaping, San Diego, suffered a 15-percent financial loss and endured a 200-percent increase in workers’ compensation costs because experienced employees had to be replaced with amateurs. Some of those 90 lost were irreplaceable.
 
Faced with the choice of hiring workers lined up at their doorsteps holding paperwork that appears legal vs. waiting on responses from classified newspaper ads, most contractors would give the classifieds a fair shot and then when they needed to start jobs or risk losing them, they’d immediately hire the willing workers. Some have been so disappointed by the lack of Americans eager to take outdoor jobs over positions in air-conditioned spaces or that require college degrees they have grown to rely on immigrant labor – legal or not.
 
According to industry professionals, the government has backed them into a corner by dangling a carrot of job opportunity immigrants find hard to resist, and then only intermittently enforcing current immigration laws and moving much too slowly in creating new ones that are easier to execute. As a result, employers say they are operating the best they can by U.S. rules.
 
“The system is really set up to fail,” Mohns says. “I resent the government for allowing me to build and train a good workforce and then coming in and telling me a percentage of them are using counterfeit documents and I have to fire them tomorrow. The government has created a huge problem for employers that cannot be undone.”
 
As the political climate surrounding immigrant labor begins to change, contractors fear business will only become more difficult.
 
In the meantime, a government plan that appears to provide relief – the H-2B program – has its own challenges and imminent threats, as well as being tangled up in comprehensive immigration reform bills that most politicians want to table in order to use to their advantage in upcoming elections vs. deal with today.
 
All the while, labor remains in short supply.
 
“My business is stagnant,” explains Pete Navarro, president of Blue Skies Landscape Maintenance, San Diego, Calif. “I can’t take another job because I can’t find another employee to put to work.”
 
“We are desperate,” agrees Roger Myers, president of American Beauty Landscaping, a $2-million company based in Boardman, Ohio. “I need bodies. And the situation is getting worse every day. I feel helpless.

A CHANGING WORKFORCE. Most industry professionals agree the root of the labor problem stems from America’s changing workforce, which is getting older and better educated everyday, leaving industries that rely on low-skilled labor without workers.
 
“The shrinking size of the American family also plays a role in this,” Navarro points out, with the average family size at 1.6 children today vs. 2.7 children in 1960, according to Population Action International. “And parents are pushing these children to attend college so they can obtain office-type jobs.”
 
American schools also do not support trade work, contractors feel. “Our schools are set up for one purpose – to prepare our children to go to college,” Myers says. “Kids who aren’t college material and like to work with their hands are not being given other options. Landscape work is perceived to be unprofessional.”
 
“We’re in a whole new generation,” adds Andrew Aksar, president of Outdoor Finishes, a landscape business based in Walkersville, Md. “Baby boomers are retiring. Kids are growing up lazy – very lazy. Everything is automated. American culture has changed drastically.”
 
Adding to a contractor’s challenge of filling open positions is a low unemployment rate of 4.8 percent (as of July 2006 Department of Labor figures), which is “below the average of the past four decades,” according to U.S. Secretary of Commerce Carlos M. Gutierrez. “It’s almost to the point of structural unemployment, meaning everyone who wants a job has a job,” explains Libby Whitley, president, MAS (Mid Atlantic Solutions), an H-2B provider in Lovingston, Va.
 
Enter immigrants. They come here with the hope of finding jobs that pay more than $5 a day and know they can get more than that per hour with little experience in U.S. industries like agriculture, construction and landscaping. But crossing the border illegally through some dangerous conditions is viewed by some as easier than going through the government’s legalization process. The result? Nearly 12 million illegal immigrants living in the United States today, accounting for more than 5 percent of the labor force, according to the Pew Hispanic Center, Washington, D.C. In the landscape industry alone, 20 to 25 percent of employees nationwide are believed to be illegal immigrants, Navarro says. Patrick Jeanette, an H-2B specialist, North County Legalization Services, Del Mar, Calif., believes this number could be even higher – 50 to 70 percent – when looking specifically at entry-level field workers or in areas like California with greater populations of illegal immigrants. Stillwater, Okla.-based Chuck Twist, coowner, TNT Lawn & Landscaping and president of H.O.L.A. Labor Consultants, believes as many as 90 percent of landscape companies using immigrant labor are employing illegal workers.
 
Today, Mohns has grown to 300 employees, and 90 percent of them are Hispanic. “I don’t have high school kids knocking on my door looking for summer jobs – they want to sleep in until 11 a.m. and then go to work at the air-conditioned mall or at In & Out Burger,” he says. “Whether they are here legally or illegally, the immigrants who apply to work in this industry are people who know we need hard workers, and they are reliable, responsible and productive.”
 
But the immigration issue continues to intensify with 52 percent of Americans saying immigrants are a burden because they steal jobs, housing and health care, according to a March 2006 Pew Hispanic Center study. This number is up from 38 percent in 2000.
 
Many contractors blame their unprofessional, unlicensed counterparts who don’t have insurance and pay low wages under the table for giving the industry and its use of immigrant labor a bad name. The few who get caught in these acts fuel anti-immigration groups, whose members say illegal immigrants depress wages and make it difficult for Americans to compete. “For the right money, people will work at any job,” insists Jon Dougherty, a political analyst with Dulles, Va.-based Freedom Alliance, an anti-immigration group.
 
Contractors balk at these types of comments. “I do realize there are employers who might take advantage of this situation and are only looking for cheap labor, but most employers in our industry pay all of their workers fairly despite whether they are Americans or immigrants,” believes Mohns, who starts employees at his company in the $8 to $10 range. “It’s hard work, and Americans just don’t want to do it.”
 
According to Lawn & Landscape, entry-level mower operators, construction workers and spray technicians earn average hourly rates in the $8.20 to $8.80 range, while experienced workers receive $10.60 to $12.40. These figures are higher than or on par with state prevailing wages and the national minimum wage.
 
“The reality is that we have jobs that American citizens either aren’t willing or aren’t available to do,” Gutierrez says. “We need sources of labor from other countries to fill jobs that aren’t getting filled.”
 
“All we want as employers is for people to show up and do an honest day’s work for an honest day’s pay – we don’t care where they come from, we just need them,” Twist agrees. “We wouldn’t be asking for them if we couldn’t find them.”
 
U.S. citizens in general tend to side with contractors on this issue, 65 percent of them believing that immigrants take jobs Americans don’t want (only 24 percent believe they take jobs away from Americans), the Pew Hispanic Center study says. The report also reveals that only 16 percent of Americans feel they or a family member lost a job to an immigrant worker.  
 
But illegal immigrants aren’t helping the situation. Some contractors feel they are being coached poorly by their peers and are seen by some as using American opportunities without paying for any of the benefits or learning English so they can truly become part of society. One example is claiming zero dependents on their W-2 forms and then failing to file tax returns. As a result, 53 percent of Americans feel illegal immigrants should be required to go home, and only 25 percent of that group believe they should be allowed to use a temporary worker program, the Pew Hispanic Center reports.
 
The other issue that fuels this debate is one of security. Lawmakers examine all existing and proposed immigration-related laws more closely since the 9/11 attacks to ensure measures are taken to protect the country from future occurrences. Therefore, any programs created to aid immigration take more time and money to draft and approve. Whitley says this is understandably necessary. “I wouldn’t want to be a part of the program or security measure that wasn’t strong enough to keep out the next Muhammed (Atta al-Sayed – a suicide pilot believed to be the leader of the 9/11 attacks).”
 
TOUGH ENOUGH? Immigration isn’t a new issue for the United States. In fact, Gutierrez says there are fewer foreign-born people living in the country today – 12 percent – than there were in 1890 when 14.8 percent of the population was foreign-born.
 
The most recent example of a bill put into place to reduce illegal immigration is The Immigration Reform and Control Act of 1986, which started the auditing of I-9 forms employers must fill out within three days of hiring an immigrant worker and established an amnesty program for illegal immigrants, granting a percentage of them legal status. The bill also tried to reduce employment prospects and tighten border security to prevent further illegal immigration.
 
Critics of this bill point to the simple fact that for each illegal immigrant granted amnesty under the plan (more than 2.7 million) approximately four new ones have since replaced them.
 
Many say the problem is one of enforcement. But as the immigration issue moves to the forefront, regulation execution is picking up pace. “There are laws that have been on the books for years that the government is finally starting to enforce,” Jeanette points out.
 
In April alone, Immigration and Customs Enforcement (ICE) arrested more people (employers and employees) for unauthorized employment than they had in the entire previous year, according to the Greenberg Traurig Attorneys’ Immigration Alert. Public statements issued by Assistant Secretary of ICE Julie Myers and other Department of Homeland Security officials indicate that worksite enforcement will continue and that employers who fail to adhere to employment verification procedures can expect to face heavy civil and criminal penalties.
 
Jeanette says the government is already becoming stricter on its imposing of fines as a result of mis-match letters, which are sent to employers by the Social Security Administration (SSA) or ICE when employee names and Social Security numbers on W-2 or I-9 forms do not match.
 
On June 14, ICE issued proposed federal regulations outlining procedures employers should follow upon receipt of mis-match letters, and requested comments from businesses regarding these suggested policies. Initial responses say rule time lines are impractical and the rules themselves overly broad, ignoring employer responsibilities in certain situations, such as if SSA fails to respond timely to inquires or an employee is an identity theft victim.
 
In addition to beefing up consequences as a result of mis-match letters, President George W. Bush made the decision in May to send 6,000 National Guard troops to the Southern U.S. border to assist the Border Control in regulating the flow of illegal immigrants pouring in from Mexico, and it’s starting to have an effect. The Associated Press reports that in June with the arrival of less than 100 of these support troops along the border, detentions were down 21 percent border-wide and 23 percent in Arizona alone, the state with the busiest border, according to Dougherty. Jeanette reports border crossing being down 45 percent with just 1,100 extra guards in these early stages of enforcement.
 
ONE SOLUTION. In the midst of these concerns, some contractors think the H-2B program is the only way to find a legal workforce.
 
The H-2B nonimmigrant program permits U.S. employers to hire foreign workers for temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each U.S. Citizenship and Immigration Services (USCIS) fiscal year (Oct. 1 through Sept. 30). The process for obtaining H-2B certification is similar to but less extensive and time consuming than permanent certification. Employers must apply for workers no more than 120 days before they need them after failing to hire American workers via advertisements through the state and federal labor departments. 
 
According to Lawn & Landscape, 26 percent of contractors currently use the H-2B program, up from 19 percent in 2003. And certified workers in the landscape laborer H-2B category totaled 48,590 in fiscal year 2004, making the industry the largest user of the program. This increased from 36,299 in fiscal year 2003.
 
The H-2B program’s strict requirements resulted in marginal usage until the past five to seven years as contractors learned to better work with its limitations, resulting in 10 to 25 percent growth annually, Whitley says. Employers’ reliance on the program increased until the cap was hit for the first time on March 9, 2004, and even sooner the next year on Jan. 3, 2005. As a result, President Bush signed the Save Our Small and Seasonal Businesses Act into law in May 2005 as a two-year temporary fix. The law exempts return workers who used the H-2B program for the previous three fiscal years and splits the program cap into two 33,000-person segments to help prevent spring and summer employers from being closed out of its use.
 
While the bill does not set a ceiling, the Department of Homeland Security estimates that an additional 30,000 people a year are admitted under this expanded cap.
 
According to Lawn & Landscape research concerning fiscal year 2005, 15 percent of contractors said their applications for H-2B workers did not get in by the time the cap was reached Jan. 3, with 5 percent missing it by one week, 5 percent missing it by more than one week and 5 percent reporting they hadn’t even reached their 120-day deadline yet. After the Save Our Small and Seasonal Businesses Act was passed, some of these contractors did receive relief via returning H-2B workers, and only 3 percent of contractors reported that they did not receive their H-2B workers before the first fiscal year 2006 cap was reached Dec. 16, 2005 and that they would not reapply for the second 33,000 fiscal year cap.
 
But, as the government stated when the law was passed, it’s a “temporary solution,” and one that reaches its deadline Sept. 30. Landscape contractors have been busy making Capitol Hill visits urging senators and representatives to co-sponsor and pass the proposed Save Our Small and Seasonal Businesses Act of 2006 bills in the House and Senate today (H.R. 4740/S. 2284) that extend the returning worker exemption for three more years. Without it, many say the cap will be reached even sooner, maybe as early as November, Whitley says, and more will be left without workers.
 
What’s slowing down H-2B? Senate and particularly House members feel they cannot renew an H-2B law without also moving forward on comprehensive immigration reform.
 
The Senate and House have both proposed bills dealing with the subject, albeit they are very different. The Senate’s bill (S. 2611) combines border enforcement with a temporary guest worker program and lists requirements illegal immigrants must meet to pursue legal status and qualify for citizenship. It is also supported by President Bush. The House bill (H.R. 4437) focuses solely on border enforcement, authorizing construction of 700 miles of security fencing along the U.S.-Mexico border and making it a felony to come across the border illegally or to help illegal immigrants.
 
Industry professionals support the Senate’s bill because it provides a guest worker program, is a bit more lenient concerning illegal immigrant hiring violations and can convert some of their current illegal workers into employees of legal status.
 
“The Senate bill wants to make a certain number of undocumented workers legal – that’s awesome,” Navarro says. “The only thing I worry about is illegal immigrants who have been in the country the past few years who may not qualify. As landscape companies have grown from the housing boom, it’s inevitable that they have some newer workers at their companies. Look around your office – can you lose five people right now and still get the same level of work done? Some companies might have to considerably scale back the amount of work they do if they lose these workers.”
 
Unfortunately, neither bill has budged. And House members insisted on holding summer hearings on the subject before trying to compromise with the Senate, pushing formal negotiations until September, when lawmakers typically shy away from tough issues because campaigns are entering their final weeks. This leaves many in the industry fearing that agreements on comprehensive immigration reform or H-2B won’t be reached before November, and more importantly for H-2B before Oct. 1.
 
If Congress does not act this year, the House and Senate will have to begin anew in 2007 should lawmakers want to pursue immigration changes.

THE CONFUSION. So far, H-2B and comprehensive immigration reform bills remain intertwined in House and Senate discussions, but many industry professionals think the two issues should be evaluated separately.
 
“People are very confused,” Twist says. “Anti-immigrant people are afraid non-immigrants will come here on H-2B visas with the intent to migrate. My experience is this is rare.”
 
In fact, 98 percent of H-2B workers return home to their countries of origin each year as their visas expire, according to Bob Wingfield, president of H-2B provider Amigos, Dallas, Texas. “Nothing about H-2B has to do with immigration – it’s a non-immigrant program,” he explains, adding that the industry and the government need to focus on H-2B now and worry about comprehensive immigration reform later. “Thinking that Congress can revamp the immigration system in a few weeks is idiotic. Fixing H-2B now would allow companies to survive until they figure it out.”
 
“Comprehensive immigration reform is not the answer,” Whitely agrees, “and holding ourselves hostage to it is a mistake. Supporting the general need for reform will not at the end of the day get H-2B fixed.”
 
However, some contractors have not had the same success with H-2B or don’t understand the program and therefore feel comprehensive immigration reform is the better issue on which to focus.
 
“I think the H-2B program is flawed and I do not agree with it,” Aksar shares. “Immigrants are already here on this soil. Background check them and give them work permits.”
 
The dispute could intensify as the two issues continue to split the House and Senate, as well as the industry.
    
“Many companies in many industries depend on foreign workers,” explains Chad Stern, owner of Mowing & More, a landscape business based in Chevy Chase, Md. “If the government is going to crack down on illegal immigration they need to simultaneously implement systems that allow for more people to come here legally. If there are not enough H-2B visas for the workers trying to come here legally, does anyone really think that there would be enough for those people plus the ones who are coming here illegally? For those employers who try to go through the visa process only to be met with disappointment all you can do is forget the government and do things your own way.”
 
Throughout the continued debate, the industry and the government “must show leadership, face reality, deal with immigration as it is and not as we wish it were and avoid letting emotion take over,” Gutierrez suggests. In the meantime, despite the controversy and disparity surrounding both issues, the bottom line remains the same, Mohns explains: “I can’t find workers. I know as time goes on the workforce will continue to shrink so I’m trying to think long term. I want a legal workforce – that’s what I want. I want to have the confidence in knowing that my workers are 100 percent legal. Right now, we do our best to screen them, but that 100 percent confidence is not always there.”
 
“Business is tough even without the government looking at you,” Wingfield agrees. “Contractors are doing the best they can.”