As of today, March 19, the Department of Labor is allowed to process H-2B applications until April 15.
Last week, the DOL and the U.S. Citizenship and Immigration Services announced they would stop processing H-2B applications, essentially shutting the program down.
On Monday, The U.S. Departments of Labor and Homeland Security announced that they were working to issue a joint Interim Final Rule on H-2B, according to the Office of Foreign Labor Certification. They hope to have the ruling by April, 30.
The DOL and both are involved in processing thousands of annual applications to the H-2B program, which grants temporary visas to seasonal workers in non-agricultural industries. One of the key areas of regulation – and contention – during the past few years is the wage rates for seasonal workers.
But after a challenge from Florida Rural Legal Services, a non-profit labor rights group, the Northern Florida District Court ruled on March 4 that the Department of Labor does not have the authority to issue regulations in the H-2B program, including standards for calculating prevailing wages for seasonal workers.
DOL then announced that it would immediately stop processing requests for prevailing wage determinations and applications, and would also not accept any new requests or applications. USCIS followed suit on March 5.
“Anybody that had a problem with their application or missed their cap, it’s affected them,” says Tom Delaney, director of government affairs with PLANET.
One of those landscapers affected is DowCo Enterprises in St. Louis.
"We found ourselves on the wrong side of this mess and are scrambling to find 30 experienced professionals before the busy spring season," says DowCo President Maurice Dowell. "Not getting our reliable workers into the country is impacting every facet of our business from sales to production."
PLANET also issued a release that reads, in part: "With no statutory change at all, USCIS could accept new H-2B applications from employers that include third-party wage surveys or OES wage levels. ... DOL and USCIS have manufactured this crisis, and they have the power to stop it."
Many landscapers – as well as other industries like hospitality and food production – rely on the H-2B program to find employees they say they can’t find domestically.
In fiscal year 2014, 93,649 H-2B positions were certfied by the government. Landscapers employed 34,845 seasonal workers during that time, the most out of any industry. The next-closest industry, forest and conservation workers, employed just 9,602, according to data from the Department of Labor.
In December 2014, the Department of Labor announced that employers could no longer use private or third-party wage surveys to calculate average rates of pay for H-2B workers in their markets. Instead, employers would have to rely on wage rates published by the federal Bureau of Labor Statistics.
The March 5 decision is not related to the federally mandated cap on H-2B workers. USCIS allows 66,000 new H-2B petitions per fiscal year. Half of those petitions 33,000 are reserved for employees working between Oct. 31 and March 31. The other half are allowed between April 1 and Sept. 30.
On Feb. 2, USCIS announced that the first half of total allowed seasonal workers had been reached.