Although the H-2B cap extension bill did not pass Congress before the provision’s Sept. 30 deadline, those who use the program shouldn’t panic, says Tom Delaney, director of government affairs at the Professional Landcare Network.
The guest-worker program carries a cap of 33,000 workers each half of the fiscal year. The amendment that exempts returning workers from counting against the cap expires Sept. 30. The Save Our Small and Seasonal Businesses Act would have extended the amendment, but the bill did not pass before the deadline.
To throw in another wrench, labor union members are backing an amendment to the extension of the returning-worker exemption. Sen. Bernie Sanders (I-Vt.) introduced legislation Sept. 26, the Increasing American Wages and Benefits Act, that includes expanding the recruitment process, requiring H-2B workers to be paid more than the prevailing wage and allowing the Legal Services Corp. to represent guest workers in litigation against employers.
Such requirements could be burdensome to H-2B users, Delaney says, adding meetings are occurring behind the scenes to figure out exactly what the amendment would mean for the guest-worker program.
So far, 28 senators and 80 House members have signed on as supporters of the Save Our Small and Seasonal Businesses Act (S.988, H.R.1843). Sen. Barbara Mikulski (D-Md.), who introduced the Senate version.
“I will continue doing everything I can to make sure small businesses do not suffer without this exemption,” Mikulski says. “I will use every option available to move this as a stand-alone bill or to attach it to another piece of legislation.”
There is still hope that a cap exemption bill will be passed, even if it’s after the deadline, Delaney says. If that happens, the U.S. Citizenship and Immigration Services department can retroactively apply exemptions to returning workers who were signed up before the bill was passed. Because of this, Delaney recommends that contractors submit their applications as they normally would.
At the same time, Delaney urges H-2B users to continue talking to their representatives about passing the bill.
“We’re still trying to re-energize and re-educate folks,” he says. “So many have misunderstood the fact that deadline was September; now people think after deadline has passed, all is lost.”
Delaney points to last year, when the returning-worker cap exemption was the last bill that passed before Congress adjourned for election season.
“The real end of the end is when the legislature adjourns,” he says. “Then we’re stuck next year trying for a retrofit. But in the meantime, workers may find something else to do, or, heaven forbid, come over illegally.”