The suspension of a popular visa program by the Department of Labor following a court ruling has left many businesses without the labor force needed to perform seasonal tasks.
Cowart Seafood Corporation invested tens of thousands of dollars to upgrade its filling operations to handle the 800 gallons of shucked oysters it expects to churn out daily in 2015. Now it’s in danger of closing for the first time since the Great Depression after the Department of Labor suspended H2-B visas, a popular guest worker program that is used to fill seasonal jobs.
"Without H2-B we’ll only produce 20 percent of what we need to fill orders," proprietor Lake Cowart Jr. said in a phone interview. "If we don’t have the program, our plant shuts down. Forty American jobs depend on us having H2-B."
Cowart entered the H2-B program in 1997 to supplement his local staff with eight legal immigrant workers after seeing his workforce dwindle from 80 American shuckers in 1990 to 55. The demand has risen to as high as 53 H2-B employees in recent years. The average age of his American shuckers is now more than 55, and "hardly any young people come into the profession."
"We’ve done everything we can [to recruit]. It’s refreshing to see a local young person who doesn’t mind doing manual work, but they’re all flipping burgers or working at Walmart," he said.
The H2-B program has been in place for more than 50 years. Employers can bring in foreign guest workers after demonstrating to the Department of Homeland Security’s Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) that Americans are not interested in the work.
Companies must pay a premium wage, provide transportation and, in many cases, housing, and ensure that the guest workers pay taxes and return home at the end of their typical three-to-nine month stint. The program is capped at 66,000 workers and is popular in the landscaping, seafood, and hospitality industries.
Cowart said that the administrative costs of bringing in visa holders has risen from $400 to more than $1,000 per worker over the past six years. Sean O’Donnell, president of Pickering Valley Landscape, said that he has been willing to bear that cost over the past 18 years, in order to make sure he is not hiring illegal immigrants.
"I realized that a lot of landscapers walking around were illegal immigrants. We sought the program out to make sure we had legitimate, legal workers," O’Donnell said. "I’d close my doors before jeopardizing my business with something unlawful."
Labor regulators had served in an advisory role since the H2-B program began in 1952. Reforms drafted by the Bush administration in 2008 and later altered and applied by Obama gave DOL the sole responsibility of certifying the foreign-born workers. DOL and USCIS suspended the H2-B program on March 5, one day after a Florida judge declared that DOL exceeded its statutory authority.
"The Court finds that DOL lacks authority to engage in legislative rulemaking under the H-2B program, and therefore lacked authority to enact the 2008 regulations at issue in this suit," Judge M. Casey Rodgers ruled.
"Because of this decision, we can no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program. We are considering our options in light of the court’s decision," a DOL spokesman said via email. A USCIS spokeswoman said the department had no choice but to halt the application process for foreign workers because "Each H-2B petition must include a DOL-issued TLC before USCIS can approve the request."
Participants in the guest worker program say that opposition to the H2-B program among regulators in the DOL, not the ruling, is behind the stoppage. A memo from CJ Lake LLC, a law firm based in Washington, D.C., said that the decision does not forbid the USCIS from issuing the temporary visas; it demands that DOL return to its traditional consultative role.
"DOL and USCIS have manufactured this crisis, and they have the power to stop it," the law firm’s memo says. "DOL could exercise its statutorily mandated role of ‘consulting’ with USCIS on employer petitions, without the need for APA notice-and-comment rulemaking."
Libby Whitley, president of Mas Labor, a Virginia-based company that helps businesses through the H2-B process, said that regulators are encouraging employers to break the law.
"The irony is that these individuals and these employers that use temporary visa workers can do it by hiring illegal aliens like some of their competitors. They’re trying to do this right. They hire workers at great cost and effort," she said.
They are now stuck in limbo. O’Donnell has 60 guest worker applications that have been scuttled by the departments’ decision, as peak landscaping season arrives. More than 70 percent of those applicants are returning workers.
"Some of these guys have been with us for 16 or 17 years. These aren’t John Does. They’re skilled employees returning to worksites they’re familiar with and willing to work hard," he said.
O’Donnell spent the winter advertising in local papers and national employment sites in a bid to attract American workers. Two rounds of recruitment produced four inquiries and two interviews, but the prospective employees didn’t show. The absence of H2-B workers could force O’Donnell to lay off his American workers.
"We don’t know how we’re going to replace our workforce. It’s devastating to our business. With the current situation I might have to scale back my business by 50 percent," O’Donnell said. "My truck drivers, mechanics, and estimators, some of these guys might get laid off. Our vendors—the nurseries, the quarry, the guys selling us pavers—they’re going to be effected by this, too."
O’Donnell considers himself lucky.
"I’m not going out of business, but I know a lot of people this is going to put out of business," he said.
Cowart had the same grave predictions for the future of Virginia’s $163 million seafood industry.
"Think about the fishermen: If we can’t pack their product, they can’t sell it. The rural economy in this area depends on agriculture and seafood," he said. "It’s time for the Department of Labor to realize they’re hurting a lot of rural economies and the seafood industry."