H-2B Program
Access to seasonal workers to fill temporary positions during peak business periods is critical to the American lodging industry.
Personal service is the lifeblood of the lodging industry; it cannot be automated, it cannot be outsourced. Without an adequate number of workers, a hotel or resort simply cannot operate.
During the peak season, hotels and resorts must increase their workforces with temporary staff in order to support their full-time staff and provide service to the increased number of guests. These temporary workers are crucial to their ability to operate properties during peak seasons and retain full-time staff year round.
Without employees to fill temporary positions, hoteliers are faced with cutting back on the services to guests (a potentially fatal option for a hotel), cancelling special events guests expect, not opening portions of their property, and having to lay off full-time staff.
The H-2B visa program of the Immigration and Nationality Act was created in 1990 to allow short-term international workers to fill temporary jobs when no other workers can be found. In order to qualify for the program, an employer must be approved by four government agencies and must prove that the business has a need for temporary workers, extensive recruitment for workers was unsuccessful, and the position offers no less than the federal prevailing wage.
The number of workers allowed to participate in the program is limited to 66,000, regardless of the actual needs of the economy, and participants are required to return home when their temporary work period expires. In fiscal years 2004 and 2005, the 66,000 cap was reached six months and three months into the years, respectively. Hoteliers who have peak seasons in the spring and summer were effectively prevented from obtaining the labor they need because employers cannot apply for these workers prior to 120 days of their need.
In 2005, Congress recognized the critical role the H-2B program serves and overwhelmingly approved the Save Our Small and Seasonal Businesses Act (SOSSBA). The legislation divided the annual cap of 66,000 in two, with 33,000 reserved for the first half of the fiscal year, and the remaining number available for the second half. The Act also temporarily exempted from the cap prior H-2B workers who have participated in the program in one of the previous three years, and successfully complied with all program requirements. Congress renewed the returning exemption once, but it expired on September 30, 2007.
Currently, the FY2009 first-half cap was reached four months before the start of the FY2009 fiscal year on October 1. The U.S. government announced on July 30, 2008 that the 33,000 limit was reached and would not be accepting any more applications for that period. The FY2009 second-half cap was reached on January 7, 2009. just seven days into the new year. Reaching these early deadlines only underscore the need to reform the H-2B process. You can read more about the FY2009 caps and the H-2B program as it is administered by the government via this page.
In the 110th Congress (2007-08), Rep. Bart Stupak (D-MI) introduced H.R. 1843, which would make the relief permanent. Sen. Barbara Mikulski (D-MD) introduced S. 988, which would extend the relief provision for five years. Both bills enjoyed widespread bipartisan support. However, the legislation was being blocked by some in the House because they wanted to use the program’s popularity to leverage support for passage of immigration reform. Unfortunately, neither bill moved out of committee before Congress adjourned for the session.
Although the returning worker exemption proved to be highly successful and was approved by Congress twice, the provision expired on September 30, 2007.
On February 5, 2009, Sens. Barbara Mikulski (D-MD) and Arlen Specter (R-PA) introduced the new "Save Our Small and Seasonal Business Act of 2009," (S. 388). It is much the same bill as last year's Senate legislation, with the relief provision extended for only three years. The Senate press release on the bill's introduction is found here. And on February 23, 2009, Rep. Bart Stupak introduced the House version of this session's H-2B relief bill, H.R. 1136.
Both bills have been referred to committee and are awating action.
Since then, there have been two actions taken in Congress to address H-2B reforms. On March 4, 2009, the H-2B Workforce Coalition sent a letter to House leadership asking them to schedule H.R. 1136 for a vote in light of a similar specific immigration bill being passed by the House earlier in the session. And Rep. Frank Kratovil (D-MD) introduced on April 2, 2009, a bill (H.R. 1934) which would extend the H-2B exemption provision for the rest of FY2009.
AH&LA is working to include the valuable H-2B reform issue in any Congressional debate on immigration reform that may happen in 2010.
Members of the House and Senate are urged to:
- Cosponsor S. 388 and H.R. 1136; and
- Pass one of the bills as soon as possible
- Include AH&LA's H-2B reforms in any immigration reform legislation
AH&LA members are urged to contact their lawmakers and urge that they cosponsor their respective bill. Given the dramatic unemployment situation in this country, it will be a difficult fight this year to not only renew the H-2B relief exemption, but also to protect the program from those who want to make it unusable or eliminate it outright.
Please utilize the H-2B Workforce Coalition website at www.h2bworkforcecoalition.com for all the resources you need in calling and writing your members of Congress and writing letters-to-the-editor about this issue.
The H-2B Workforce Coalition is a consortium of various industry associations throughout the United States that have joined together to ensure American small and seasonal employers have access to legal short-term temporary workers during peak business periods. The Website contains fact sheets on the issue and an extensive news article archive on the issue. Click on the link to read more about this issue and those companies affected by this worker shortage.
AH&LA members can take advantage of the H-2B Exchange Webpage. This Webpage (www.ahla.com/h2bexchange) posts information about H-2B workers who may be eligible to transfer to other properties after their current employment term ends. By sharing information about your H-2B workers, hoteliers who have opposite peak seasons may be able to secure these workers to alleviate their own labor shortage.
On August 6, 2009, the U.S. Citizenship and Immigration Services (USCIS) reopened the fiscal year 2009 H-2B petition filing period and will immediately accept new H-2B petitions. Although USCIS announced in January it accepted a sufficient number of H-2B petitions to meet the annual cap of 66,000, the Department of State received far fewer than expected requests for H-2B visas. As a result, it has issued only 40,640 H-2B visas for fiscal year 2009. This means that there are approximately 25,000 visas that may go unused. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary workers.
The normal (non-premium processing) adjudication time frame for H-2B petitions is 60 days. However, because H-2B petitions (Form I-129) for fiscal year 2009 visas must be received, evaluated, and adjudicated on or before the fiscal year 2009 deadline of Sept. 30, 2009, USCIS cannot guarantee approval of any H-2B petition on or before the Sept. 30, 2009 deadline. The petitioner must indicate an employment start date before Oct. 1, 2009. Any petition requesting a start date within fiscal year 2009 that is received on or after Oct. 1, 2009, will be rejected.
MYTH - FACT
MYTH: H-2B workers are immigrants.
FACT: Wrong. Every H-2B worker is certified to be a non-immigrant by the U.S. government. During the screening of H-2B workers, U.S. consular officers ensure that the prospective worker has no intent to immigrate to the U.S. and identifies attributes such as a family, house or other things that would ensure the worker returns home after the work period.
MYTH: H-2B workers dilute wages.
FACT: Absolutely wrong. Employers must pay H-2B workers at least the prevailing wage (which is higher than the minimum wage) as determined by the federal government. Further, H-2B workers cannot make less than American workers. 66,000 workers represent .05% of the American workforce. It is impossible that a miniscule percentage of the workforce could dilute the wages of the American economy even if the pay rates were low, which they are not.
MYTH: College students are available to work seasonal jobs.
FACT: There was a time when college students filled many seasonal jobs. However, that time is long past. School terms have increased further into the summer and begin earlier into the fall, while the peak seasons for hotels and other businesses are beginning earlier in the spring and ending later in the fall. Even if the school terms still did coincide with peak seasons, today’s students are choosing to take internships during the summer or travel instead. The Wall Street Journal reported that “College students [are] taking internships that would buff their post-graduation résumés, or sought jobs they could continue during the school year. High-school students signed up for summer courses or exotic travel to build up their college applications.” In an article entitled “More than half of teens forgo summer jobs,” USA Today noted that the U.S. Department of Labor found “only 48.8% of teens ages 16 to 19 were working or looking for work in June” of 2007. “That was down from 51.6% in June 2006 and below the 60.2% in the labor force in June 2000.”
MYTH: The positions pay minimum wage and if offered more, workers would apply.
FACT: Employers are required to pay at least the prevailing wage as determined by the federal government for specific positions. The prevailing wage is higher than the minimum wage. Because of the lack of labor available and the demand for workers in the hospitality industry, hoteliers typically pay more than even the prevailing wage. In addition, many hoteliers offer benefits such as subsidized housing, transportation, and meals.
MYTH: Employers want the H-2B workers because they are less expensive and easier to hire than American workers
FACT: Absolutely wrong. Employers would much rather hire American workers, but they are simply not available for temporary positions. Hiring an H-2B worker is much more difficult and expensive than hiring an American worker. In order to obtain an H-2B worker, an employer must pay various fees and go through four government agencies that require them to typically use an agent to assist with the enormous amount of paperwork involved. In addition, many employers must travel to prospective H-2B workers’ countries to interview them, pay for H-2B workers’ transportation costs, pay various processing fees, and other things not required for American workers.
For more information, contact AH&LA Senior Vice President for Governmental Affairs Shawn McBurney at (202) 289-3123, smcburney@ahla.com.
(Updated December 2009)
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