H-2B Application Rejections Hit Landscape Industry

DOL defines the H-2B program as follows: "Under the H-2B nonimmigrant visa classification, aliens may come temporarily to the United States to perform temporary nonagricultural work. The process for obtaining an H-2B labor certification is very similar to that required for permanent labor certification, but is not as extensive or time consuming. The labor certification may be issued for a period of up to one year, renewable for a maximum of three years." To apply for this program, DOL requires form ETA 750 part A and B, which can be found by visiting http://edc.dws.state.ut.us/forms.htm.

According to ANLA, the H-2B application rejections were based on regional DOL certifying officers’ assumptions that landscaping is not a traditional industry that uses the H-2B program and that landscaping activities do not take place in February and December. Most of the rejected applications had requested that workers be allowed into the U.S. from Feb. 15^th through Dec. 15^th.

ANLA followed a three-point action plan involving:

1. Affected members using their local House and Senate offices to seek a resolution;
2. Alerting the House and Senate Oversight and Appropriations Committees to the need for possible Congressional intervention; and
3. Meeting with DOL officials in Washington to override the certifying regional officers’ rejections.

ANLA, legal counsel and a major national landscape contractor met with top DOL administrators of the H-2B program on February 24. Congressional assistance from Sen. Arlen Specter (R-Pa.), Sen. Bob Torricelli (D-N.J.) and others played a major role bringing DOL to the table. Both have oversight of DOL budget appropriations. According to ANLA, the lightest moment of the meeting occurred during the discussion of just when the landscaping season actually does begin each year. Several officials questioned whether landscaping is even done during the month of February. In the meantime, it was 65 degrees outside, and several laborers were mulching and edging planting beds in front of the DOL building. This was quietly pointed out to the DOL officials and caused a chuckle but also put them in a terrible negotiating situation.

DOL agreed to approve the rejected application provided the contractors could show the seasonal nature of their business by providing employee payroll counts for the months of February to December. The participants of the meeting agreed to the solution, and several landscape contractors have since had their applications granted by DOL.

This was a short-term win in a long-term battle. ANLA has been told by the DOL that a proposed rule change to the H-2B program is almost complete. This change would impact use of the program by landscape firms and horticultural distributors.