October 29, 2015

Warner & Kaine Call On Labor Department To Speed Up H-2b Visa Process

WASHINGTON, D.C. – Today, U.S. Senators Mark Warner (D-VA), Tim Kaine (D-VA), Barbara Mikulski (D-MD), Ben Cardin (D-MD) and Tom Carper (D-DE) joined a bipartisan group of Senators calling on Department of Labor (DOL) Secretary Tom Perez to speed up the certification process for industries that rely on seasonal workers here on H-2B visas. The 25 Senators have requested that DOL get to the bottom of the agency’s lengthy delays in the processing of prevailing wage determinations (PWD) for businesses that determine the wages to be paid to H-2B workers. These delays are creating uncertainty and unnecessary hardship for these businesses.

“Small businesses in our states rely on this program for seasonal workers, and we are concerned that the U.S. Department of Labor is creating unnecessary and burdensome delays that are causing hardship for American small businesses, consumers, and communities that rely on the jobs and economic growth facilitated by the H-2B program,” the Senators wrote. “The lack of certainty created by these delays is causing hardship for American small businesses, consumers, and communities that rely on the jobs and economic growth facilitated by the H-2B program.”

Employers with H-2B workers are required to request a PWD from DOL to determine the wages to be paid to H-2B workers. In the past, this process had consistently taken only a few days. Now, the process routinely and inexplicably takes 60 days or more and some employers who have used the H-2B program successfully for years are being rejected. Seasonal workers returning to the United States under H-2B visas are critical to ensuring seafood businesses have the labor force they need during peak harvest season. For every one H-2B visa granted, four American jobs are created. 

The letter signed by Warner, Kaine, Mikulski, Cardin, and Carper was also signed by U.S. Senators Lamar Alexander (R-TN), Kelly Ayotte (R-NH), John Barrasso (R-WY), Michael Bennet (D-CO), Roy Blunt (R-MO), Richard Burr (R-NC) Bill Cassidy (R-LA), Michael Enzi (R-WY), Dianne Feinstein (D-CA), Cory Gardner (R-CO), Orrin Hatch (R-UT), Heidi Heitkamp (D-ND), James Inhofe (R-OK), Angus King (I-ME), James Lankford (R-OK), Lisa Murkowski (R-AK), Gary Peters (D-MI), Rob Portman (R-OH), David Purdue (R-GA) and Thom Tillis (R-NC).

The letter to Secretary of Labor Perez follows:

October 27, 2015 

The Honorable Thomas Perez
U.S. Department of Labor
200 Constitution Ave., NW
Washington, DC 20210

Dear Secretary Perez,

We would like to express our continued frustration with the management of the H-2B visa certification process. Small businesses in our states rely on this program for seasonal workers, and we are concerned that the U.S. Department of Labor is creating unnecessary and burdensome delays that threaten their operations. The lack of certainty created by these delays is causing hardship for American small businesses, consumers, and communities that rely on the jobs and economic growth facilitated by the H-2B program.

Employers with H-2B workers are required to request a prevailing wage determination (PWD) from the Department to determine the wages to be paid to H-2B workers. In the past, this process had consistently taken only a few days. Now, the process routinely and inexplicably takes 60 days or more, and some employers who have used the H-2B program successfully for years are being rejected.

Even when employers receive their PWD from the Department, the compressed filing timetable makes it difficult to receive a temporary labor certification in time to complete the rest of the H-2B petition application process with the Departments of State and Homeland Security. One employer advised us that he received a Department of Labor certification 15 days before his application’s start date-of-need, and another 23 days before own start date-of-need. A window of 15 days is wholly insufficient to complete the full application process, much less arrange travel, lodging and logistics for the new workers.

These delays add to the burden already faced by small businesses that use the H-2B program after the Department stopped accepting a number of sources of wage information pursuant to wage regulations issued in April. While we appreciate the Department’s decision to continue allowing the use of employer-sponsored, third party wage surveys, we remain concerned that these will only be accepted under inappropriately narrow circumstances. We want to ensure that employers who rely on the H-2B program are not forced to pay artificially-inflated wages that drive up costs to the point of putting them out of business. We urge you and the Department to work with state universities and agencies to make use of state-sponsored wage surveys to address this problem.

In light of these concerns, we request that you answer the following questions:

1) How many applications for prevailing wage determinations and temporary labor certificates has the Department received since June 1, 2015?  

a. How many prevailing wage determinations and temporary labor certifications have been approved? 

b. How many applications have received “Notices of Deficiency” or other requests for additional information?

2) Between FY 2015 and FY 2016, the processing time for PWD went from less than a week to more than 60 days. What changed within the Department that created this significant delay in the processing of PWDs?

a. Were there administrative changes?

b. Were there changes to staffing levels?

c. Were there other changes within the Department that have been causing these delays? 

3) By what date will the Department revert back to a 3-5 day turnaround for PWD?

4) What steps is the Department taking to improve the efficiency with which PWDs and temporary labor certifications are provided or denied to employers?

a. What is the average time period for the approval of these temporary labor certifications?

5) Is the Department advising employers who have previously participated in the H-2B program how to improve their application to meet the Department’s requirements? If so, please describe how. If not, why not?

6) Are there statutory changes that would help the Department improve its role in the administration of the H-2B program?

a. If so, by what date will you submit those recommendations to Congress?

We appreciate your response to these questions. Please provide written answers by close of business on November 13, 2015. Thank you for your attention to this urgent matter. 

Sincerely,

About the H-2B Visa Program

The H-2B visa program has aided the Eastern Shore’s seafood industry by providing seasonal labor to help pick crab meat. It helps protect our borders and rewards foreign workers who play by the rules. At the same time, it protects American workers by requiring employers to recruit American workers first and keeps small and seasonal businesses open by guaranteeing needed labor during the peak seasons. The return rate for H-2B workers in Maryland is 80 percent each and every year, demonstrating the mutually beneficial success of the program.

Over the past 20 years, industries using the H-2B visa program have brought seasonal workers into the United States at different times during the season to match peak harvest times. Seafood processors in the Chesapeake Bay, for instance, are forced to rely on the H-2B program for help picking crabs and shucking oysters despite attempts to hire domestic workers. The unique nature of the seafood industry makes these processors dependent not only on seasonal changes but on the behavior and activity of crabs, oysters and other harvested products.

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