The H-2B program is tailor made for the landscaping industry, according to Arnulfo Hinojosa, vice president of the Federation of Employees and Workers of America. It’s designed specifically to provide U.S. employers with temporary workers when the supply of American workers is low.
Over half of H-2B visa beneficiaries are in the landscaping industry, 5.5% of which are in Colorado, the second biggest user of H-2B labor, Hinojosa said during a session at Landscapes 2018 in Louisville, Kentucky.
[Related: DOL launches H-2B compliance initiative]
The program is overseen by four different agencies: state workforce agencies, the Department of Labor, the United States Customs and Immigration Service and the Department of State. The state workforce agency will test the local labor market, Hinojosa said. Then DOL determines the prevailing wage and advises USCIS.
USCIS makes the final decision and notifies DOS, which issues the visas to workers.
To participate, employers must prove that they have a need for labor that can’t be filled with U.S. workers, and that their labor needs are temporary.
“If you need workers year-round, you won’t qualify for this program,” Hinojosa said.
Sales and payroll reports will prove seasonal need, he noted, but there are several steps employers need to take to prove they’ve exhausted nonforeign channels for workers.
One seemingly arbitrary step is that employers must print a job listing in a newspaper for at least two days, one of those days being a Sunday, Hinojosa said. The listing will also appear on the Department of Labor’s national job website.
Hinojosa stressed that employers can’t treat domestic job candidates any differently from how they would treat workers on an H-2B visa. They can’t require a candidate who is based in another state or Puerto Rico to come in for a personal interview.
He also encouraged landscape companies to make sure that their job descriptions match across the platforms where they’re posted, and to be very specific about the job duties the worker will be performing. DOL sets the prevailing wage based on the job duties described. A worker who pours pavement or installs hardscape will call for a different wage, Hinojosa said.
Discrepancies between job descriptions could result in a Notice of Deficiency, the “kiss of death,” Hinojosa said. A Notice of Deficiency will delay an application for several weeks as companies respond to the request for more information, and could prevent landscape companies from getting the visas they need. Applying for additional visas over what was requested last year, or for a longer season, could also trigger a notice, Hinojosa said.
H-2B in 2018
The 66,000 annual quota on visas was set by statute in 1990, Hinojosa said. “That’s the limit they came up with when the program was established and it has not changed.”