Titled the “Save Our Small and Seasonal Businesses Act of 2015,” the legislation was introduced by Senators Thom Tillis (R-North Carolina), Barbara A. Mikulski (D-Maryland), Bill Cassidy (R-Louisiana) and Mark R. Warner (D-Virginia).
Under the H-2B program, which addresses U.S. employers’ need for non-agricultural seasonal workers, foreign residents are allowed to come to the United States temporarily as “non-immigrant workers.” They can stay a maximum of one year (although it usually ends up being closer to 10 months), with two one-year extensions possible before an H-2B worker is required to leave the United States for at least three months.
The program is overseen by the Department of Homeland Security (DHS) in consultation with the Department of Labor (DOL). Much of the confusion surrounding the program in recent years has resulted from a number of federal lawsuits filed in connection with the rules governing the H-2B process.
Much of that litigation is still pending. Earlier this year, the H-2B program effectively shut down, albeit briefly, until a judge in one of the cases stayed an order the court had just handed down.
This past April, DHS and DOL jointly issued an interim final rule governing the program. Based on NALP’s reaction at the time, landscapers found little to like in the new rule, particularly its requirements with respect to obtaining the required “prevailing wage determination” from the Labor Department.
In urging its members to contact their senators and representatives about the need for the new legislation, NALP notes that the bill would require “wages to based on the job category and experience level required, rather than the median wage” and would allow the use of private wage surveys in determining the prevailing wage in a particular company’s marketplace.
In an Oct. 27 letter to U.S. Secretary of Labor Thomas Perez, the senators who introduced the bill, along with a number of their colleagues, questioned why the Labor Department’s processing of prevailing wage determinations (or PWDs) is now taking a couple of months instead of a couple of days. The delay on PWDs makes it difficult, if not impossible, to meet other deadlines in the process, the senators wrote.
According to NALP, the bill introduced last week also will specify that employers who use H-2B workers are not required to provide housing for the workers and that payroll deduction may be used to collect fees (rent) for housing when it is provided.
The bill would require employers to “make reasonable efforts” to assist their H-2B workers in locating housing.
The proposed legislation also specifies that for H-2B workers, 30 hours or more per week is considered full time and that the seasonal need is limited to 10 months.
