Senate’s Immigration Reform Act May Impact H-2B

As the debate on a comprehensive immigration overhaul hits Senate, the green industry is paying attention. Thousands currently use the H-2B guest worker program, and the Senate's proposed Secure Borders, Economic Opportunity and Immigration Reform Act of 2007 includes language detailing a similar guest worker program. Although it is still early, users of the H-2B program should participate in the debate, says the Professional Landcare Network.

PLANET released an update on the latest bill language, which is still listed as “for discussion purposes only." The following is included:

• A Y-2B (old H-2B) immigrant may work in the U.S. for a period of 10 months. He/she may return for other employment provided he/she resides outside of the U.S. for a period of two months.
• For the first fiscal year in which the program is implemented, the cap is 100,000. For subsequent years, the cap is adjusted according to the market-based regulator. The cap cannot exceed 200,000 for any fiscal year.
• Market-based regulator — If the total number of visas allocated for that fiscal year are used up within the first half of that fiscal year, then an additional 15 percent of the allocated number shall be made available immediately and the cap for the following fiscal year will increase by 15 percent of the original allocated amount in the prior fiscal year. If the allocated visa is used up during the second half of the fiscal year, then an additional 10 percent of the allocated number will be made available immediately and the allocated amount for the following fiscal year will increase by 10 percent of the original allocated amount in the prior fiscal year. If the visas used in a fiscal year are less than the allocated amount and this is not due to processing delays, then the allocated visa amount will decrease by 10 percent.
• There is no exemption for repeat workers. The current exemption expires Sept. 30, 2007.
• There is no transition so the Y-2B program would not take affect until the bill’s triggers (more border guards, completion of fence, etc.) is reached. Consequently, from the end of fiscal 2007 until the implementation of the new Y-2B program, the cap would be 66,000 (33,000 for each half of the fiscal year).

In addition, because the Y-2B falls under the class of a “Y” visa, other requirements make the Y-2B employer responsible for more requirements, which makes it much more expensive to use the program — workers can leave to work for other approved employers, new fees, reporting, more advertising requirements, and workers’ compensation insurance costs. PLANET believes that not all of these were intended to include H-2B but were included in the “Y” visas and still have a chance to be fixed.

Basically, this draft would result in major problems before the implementation of the Y-2B visa because there is no extension of the repeat-worker exemption beyond the end of this year, and the cap is too low to help once the new program is established. Last year ,close to 200,000 visas were issued, according to PLANET. If you count repeat workers, the maximum would be 115,000, assuming 100,000 were reached in the first half of the fiscal year, which is fewer visas than last year.

Senate staff in support of the H-2B program now know that we need language possibly included in the manager’s amendment that would extend the repeat-worker amendment under the H-2B program until the Y-2B program takes affect, and then either create the same exemption under the Y-2B program or significantly raise the Y-2B program cap and not limit it to 200,000.

Contact with the main senators’ staff, who are authors of the bill, has already been made to discuss the problem, according to PLANET. There are also other items in the guest-worker program and sections dealing with employers who have employees that may be illegal and problematic.

PLANET urges those affected to call their senators at 202/225-3121 and ask that the draft senate immigration bill be revised to:

• Maintain the integrity of the current H-2B program;
• Permanently extend the current repeat-worker exemption;
• Increase the cap and include a market-based regulator; and
• Provide appropriate resources for H-2B processing at the departments of labor, homeland security, and state.

For more information contact Tom Delaney, PLANET director of government affairs, at tomdelaney@landcarenetwork.org or call (800) 395-2522.