Small-businesses that regularly utilize these workers -- such as seafood processors, landscapers and foresters -- say the new rules would raise their operating expenses, causing them to lose contract bids or even shut down. Labor and migrant rights advocates contend the rules would bolster protections in a system that has many documented cases of abuse, and that employers shouldn't be creating business models that create do-or-die situations where they must rely on these workers to survive.
In Thursday's ruling, US District Court Judge Margaret C. Rodgers said the department acknowledges that it has no express congressional grant of authority to engage in legislative rule making under the H-2B program and that such authority was vested instead in the secretary of the Department of Homeland Security.
Labor Secretary Hilda Solis and Assistant Secretary Jane Oates are named in the lawsuit brought forth by five companies and advocacy groups in landscaping and forestry and the US Chamber of Commerce.
We disagree that we have no authority to promulgate regulations for the H-2B program under the Immigration and Nationality Act, said a Labor Department spokesperson. The department has been issuing regulations for the program for several decades.
The rules were announced in February. They include:
- Guaranteeing the worker will receive 75 percent of the hours certified in any 12-week period, and if not the employer must compensate the worker for the difference;
- Paying native workers the same wages and benefits as H-2B workers engaged in substantially the same work;
- Requiring the employer to pay round-trip airfare and subsistence costs;
- Altering the way businesses engage in efforts to recruit native workers and file job orders before applying for the annual 66,000 available H-2B visas, which are renewable for up to three years;
- Lowering the amount of time an H-2B worker can be in the country to nine months, down from 10, before the worker is required to leave the country for at least three months before returning; and
- Prohibiting employers or recruiters from passing off the costs of visas or charging fees to H-2B workers in the transnational recruitment process.
The new rules force us to spend more time and money on recruitment initiatives that have proven almost worthless, said Jack Brooks, president of the Coalition to Save America's Seafood Industry. They greatly complicate efforts to bring in employees who have demonstrated their willingness to do what American workers simply won't do.
Calling the lawsuit a last ditch effort, Saket Soni, executive director of the National Guestworker Alliance, dismissed the concerns and said businesses shouldn't depend on these workers for their survival.
The rules are only a 'burden' to those who build their business on exploitation, said Soni. We're confident that the Department of Labor will prevail in the end. In the meantime, this lawsuit is hurting small businesses that play by the rules and don't rely on abusing the H-2B program to turn a profit. It's also delaying economic security in desperate times for all workers.