For one brief Camelot moment last month, the H-2B program (for unskilled foreign workers in non-agricultural jobs) stopped recruiting as a result of a court order — but then the Department of Labor, of all entities, revived it.
The H-2B program is the smallest of the three foreign worker programs handled by DoL; it rarely gets as much attention as the larger H-2A farm worker program or the H-1B program, which displaces college graduates with foreign workers, notably in computer programming. (For more on how this exploitative program works, see my colleague David Seminara's Backgrounder on the H-2B program.)
The alien workers in the H-2B program, mostly from Mexico, toil in a number of different categories; they are landscapers, forestry workers, traveling carnival employees, and people in the hospitality industry. Most are seriously underpaid, with every one of them displacing a resident worker, either a citizen or a green card holder.
How a conservative judge shut down the program's recruiting for two weeks is the culmination of a long, convoluted story that started about five years ago.
The Obama administration has been trying for years to update the regulations it inherited from the Bush II administration (hereafter the 2008 regulations) and they finally pushed through a new set of rules (the 2012 regulations) to the dismay of the H-2B employers, as there were more worker protections, more demands for recruiting Americans, and higher rates of pay.
So the H-2B employers went forum shopping, looking for a one-judge district court where the single judge appeared to be a conservative. (The opponents of the latest Obama amnesty must have used a similar tactic to get the anti-DAPA litigation into the court in Brownsville, Texas.) The H-2B employers settled on the Pensacola Division of the Northern District of Florida, where the presiding federal judge is M. Casey Rogers. She is a Bush II appointee.
To shorten a long story, the H-2B employers eventually persuaded the judge that the Department of Labor had no grounds under the law for setting wages as they had in the 2012 regulations. The case was appealed to the 11th Circuit, and the employers' position was upheld.
The day after the 11th Circuit ruled, one Gabriel Perez, a U.S. citizen and a Palm Beach busboy, went into Judge Rogers court arguing through the workers' lawyers (such as Florida's Migrant Farmworker Project) that if DoL had no authority to operate under the 2012 regulations, it had no authority to operate under the earlier ones (2008) as well. Judge Rogers agreed and closed down H-2B recruiting nationally, while leaving currently employed H-2B workers in place.
There's an old term for the employers' situation: Being hoisted by one's own petard (the latter being a bit of medieval weaponry).
The case was entitled Perez v. Perez, with the second-named being Thomas E. Perez, the Secretary of Labor. Users of the federal courts' electronic records program, PACER, will find the case at 3:14-cv-00682-MCR-EMT.
Judge Rogers made her decision on March 4. After that there was a firestorm, with DoL being severely pressed by H-2B employers, their respective lawyers, and U.S. senators to do something to start the recruiting again. I suspect that there was not much pressure applied in the other direction; unemployed citizen landscape workers not having a powerful lobby.
Soon thereafter, one of the workers' lawyers told me, Gabriel Perez's team, realizing that the recruiting stop would soon be vacated at least temporarily by the federal courts (at the request of Secretary Perez's lawyers), agreed not to oppose the resumption of H-2B recruiting if DoL did not seek further delays and if it and the Department of Homeland Security (which clearly has rule-making authority for these workers) would promise to come up with new regulations by April 15. DoL agreed. The workers' lawyers are hoping these new regulations will look more like the 2012 ones than the 2008 ones. Judge Rogers then granted the temporary stay of her earlier order, including the new deadlines, and on March 18 H-2B recruiting started again.
Less than a week passed before another force intervened. Congress, years ago, set a 66,000 ceiling on these certifications, with DHS being the scorekeeper. On March 26 USCIS said that the ceiling had been met and no further recruitment could take place until the new fiscal year started on October 1.
So, the recruiting calendar for the second half of the fiscal year for H-2B employers looks like this:
- Up to March 4: Recruiting as usual;
- March 4 - March 18: No recruiting, court order;
- March 18 - March 26: Recruiting again;
- March 26 - September 30: No recruiting, ceiling reached;
- October 1 - ?: Recruiting resumed until new ceiling is reached.
Employers wanting to recruit workers as needed year-round, of course, have another option: they can recruit any time they want from among the more than 100 million resident workers (citizens, green card holders, TPS or DACA workers, and asylum applicants) — all they have to do is to offer a competitive rate of pay.
The hitch, of course, is that the H-2B employers do not want to meet the requirements of the labor market — they want their cheap, nearly indentured foreign workers.