The Wage and Hour division of the US Department of Labor announced earlier this month that it was planning a campaign of inspections and investigations targeting employers who use the H-2B seasonal guest worker visa program to hire temporary employees from other countries. Billed as an “education and enforcement initiative,” the campaign will target hotels and landscapers, the two industries that rely most heavily on the H-2B visa, “providing compliance assistance tools and information to employers and stakeholders, as well as conducting investigations of employers using this program,” according to the Labor Department’s statement:
A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers. “Any employer seeking workers under this program must be ready and willing to hire qualified U.S. applicants first,” said Bryan Jarrett, Wage and Hour Division Acting Administrator. “This initiative demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed or otherwise working under substandard conditions.”
Last year, WHD investigations found more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the hotel industry.
The H-2B is a six-month visa that allows foreigners to work for a US employer temporarily and is most commonly used in the hospitality and landscaping industries to fill labor shortages in the high-demand summer season. In a historically tight market for American workers, employers in these industries have grown more dependent on the H-2B program to keep up with seasonal demand and grow their businesses. The policies of President Donald Trump, who has tasked his administration with reducing the number of both legal and undocumented immigrants entering the US, have exacerbated the labor market challenges of many employers who rely on guest worker visa programs like the H-1B and H-2B.
The UK government’s Migration Advisory Committee issued a report this week assessing the impact of immigration from the European Economic Area and suggesting ways for the government to reform immigration policy in preparation for the UK’s exit from the European Union next March. Once Brexit is fully implemented in 2020, freedom of movement is expected to end between the UK and the EU, meaning UK employers will no longer be able to seamlessly recruit workers from other European countries, which employers fear may lead to labor shortages in a range of industries from agriculture and construction to hospitality, health care, and finance.
The MAC report concludes that there is no need for the UK to continue to have separate immigration rules for EU/EEA citizens and migrants from other countries. The committee’s main recommendation for alleviating these potential shortages is to remove the cap on Tier 2 skilled-worker visas, People Management explains:
Along with ending the Tier 2 (General) visa cap, the report also suggested extending Tier 2 eligibility to medium-skilled roles and abolishing the resident market test list but retaining the £30,000 salary threshold. It added the immigration skills charge should also cover EEA citizens. The report noted these changes “would allow employers to hire migrants into medium-skill jobs but would also require employers to pay salaries that place greater upward pressure on earnings in the sectors”.
Tier 2 visas became a concern for employers earlier this year as restricted certificates of sponsorship – which must be obtained by UK employers hiring non-EEA staff – were continuously oversubscribed for in the first half of 2018. Pressure on the system only eased after the government removed NHS doctors and nurses from the cap.
The main upshot of this proposal is that highly skilled talent would be relatively easy to recruit from other countries, but low-skill workers would not. Writing at Personnel Today, Kerry Garcia and Jackie Penlington from the law firm Stevens & Bolton LLP take a closer look at what the MAC’s scheme would mean for employers:
Under a new policy that came into effect on Tuesday, visa adjudicators at US Citizenship and Immigration Services are now allowed to deny visa applications or petitions without first issuing a notice of intent to deny or a request for additional evidence. In announcing the policy in July, the agency said the policy was “intended to discourage frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”
Immigration lawyers, however, tell ProPublica that the policy will effectively make it much harder for visa applications to succeed, adding to the various procedural barriers the Trump administration has erected to slow down legal immigration to the US. The attorneys expressed concern that “there is not enough oversight or clear standards to ensure fair handling”:
One reason the lawyers are worried is that they’ve seen a barrage of scrutiny directed at once-standard immigration applications since Trump took office. ProPublica spoke with a dozen lawyers and reviewed documentation for several of these cases.
Many responses cited technicalities: One application was not accepted because the seventh page, usually left blank, was not attached. Another was rejected because it did not have a table of contents and exhibit numbers, even though it had other forms of organization. “It seems like they are just making every single submission difficult,” Bonnefil said. “Even the most standard, run-of-the-mill” application.
The US Department of Homeland Security is close to approving a policy that will remove the right of at least some H-1B visa holders’ spouses to work in the US, the Mercury News reported last week, based on a new court filing:
Those affected hold the H-4 visa, a work permit for spouses and under-21 children of H-1B workers. It remains unclear if all spouses of H-1B holders will be banned from working, as Homeland Security has only said “certain H-4 spouses” will be targeted by the new rule. Because not all H-4 holders are allowed to work, it appears that “certain H-4 spouses” may refer to all who are work-eligible.
Controversy over the H-4 has spun off from the furor over the H-1B, which is relied upon heavily by Silicon Valley technology companies but attacked by critics over reported abuses. Homeland Security, which had earlier said it would make the change in February, filed an update in a federal court case on Monday to inform the court that the new rule was in the final “clearance review” and that the department’s intention to impose the ban was unchanged.
H-4 visa holders were granted the right to work under a policy change made by the Obama administration in 2014. The Trump administration began considering a reversal of this policy in April 2017 and it became part of the regulatory changes the government developed in response to President Donald Trump’s “Buy American, Hire American” executive order issued that month, which called for a crackdown on guest worker programs like the H-1B visa and stricter enforcement against allegedly widespread fraud and abuse in these programs. The Department of Homeland Security formally proposed ending work authorization for H-4 visa holders last December.
The latest labor market bulletin from the UK Office for National Statistics, released on Tuesday, shows that the number of citizens of other EU countries working in the UK has declined in the past year by the largest amount since the government began collecting comparable records two decades ago. Between April and June 2018, approximately 2.28 million EU nationals were employed in the country: 86,000 fewer than in the second quarter of 2017. In the same period, the number of employed UK nationals increased by 332,000 to 28.76 million, while the number of non-EU foreign workers increased by 74,000 to 1.27 million.
Gerwyn Davies, senior labour market analyst at the CIPD, comments on the report to Personnel Today:
“Today’s figures confirm that the UK labour market has suffered from a ‘supply shock’ of fewer EU-born workers coming to live and work in the UK during the past year, compared with previous years. This has contributed to labour supply failing to keep pace with the strong demand for workers; which is consistent with another welcome fall in unemployment.” …
“The tightening labour market is putting modest upward pressure on pay, but this still isn’t leading to more widespread pressure due to ongoing weak productivity,” said Davies.
New employer survey data released on Monday by the CIPD and the recruitment firm Adecco showed that UK employers were experiencing staff shortages due to the low-unemployment environment and a decline in migration from the EU. The survey found that the number of applicants per vacancy had dropped across all roles since last summer, while 66 percent of employers said at least some of their vacancies were proving difficult to fill.
Nonetheless, this tight labor market isn’t translating into higher wages for most UK employees.
The latest migration figures from the UK’s Office of National Statistics, released last week, showed that the number of people emigrating to the UK from EU countries had fallen to its lowest level in four years, the Guardian reported:
Data from the Office for National Statistics released on Monday showed net long-term migration to the UK from the EU was 101,000 in 2017 – the lowest level since the year ending March 2013. Overall, the data showed that about 280,000 more people came to the UK than left in 2017.
While net migration continues to add to the UK population, the figure is down from record highs recorded in 2015 and early 2016. There has been a gradual increase in emigration since 2015 to approximately 350,000. Immigration has stayed stable at about 630,000, the report showed. Net migration from countries outside the EU rose to 227,000, the highest level since September 2010.
Concerned about the impact of immigration on wages and job opportunities in the domestic labor market, the UK government in 2010 set a goal of cutting net migration figures to below 100,000 a year. Curbing immigration from the EU was also one of the key objectives of Brexit. The British business community, however, has warned that reductions in immigration will make it harder for UK employers to fill jobs, slowing down hiring and hurting the economy.
In the context of a very tight labor market, these new figures are bad news for employers, Gerwyn Davies, senior labour market adviser at the CIPD, tells Jo Faragher at Personnel Today:
The US Department of Homeland Security announced on Friday that it would issue an additional 15,000 H-2B visas this summer for employers to hire non-farm seasonal workers from abroad, the Wall Street Journal reported. The guest worker visa program is limited by Congress to 66,000 of the six-month visas each year, divided evenly between the summer and winter seasons. This cap has not been raised since the 1990s, but the spending bill passed by Congress in March grants Homeland Security Secretary Kirstjen Nielsen the discretion to issue about twice that number depending on labor market needs.
DHS also issued an additional 15,000 visas last year, but coming in July, that decision was criticized as coming too late in the season to mitigate the shortages of seasonal labor that employers in sectors like hospitality, tourism, and landscaping had complained of. The Trump administration’s anti-immigration posture and its reluctance to open up the US to more foreign workers of any kind have had an impact on these seasonal industries’ ability to fill jobs, forcing them to raise wages, scramble to find American workers, or cut back on business in response. (Critics of the H-2B program, on both the left and the right, say these employers should be paying higher wages and working harder to market these jobs to US citizens.)
This summer, the labor market in the US is as tight as it was last year, if not more so, and seasonal employers are facing a similar challenge. Candidates for seasonal positions are finding themselves with more bargaining power than they used to have, being able to demand greater flexibility and control over their schedules. Employers have reported, meanwhile, that their applications for H-2B visas are being rejected at higher rates than usual. Demand for the visas this year so greatly exceeded the cap, the department had to award them through a lottery system, making the process more unpredictable for business owners who are accustomed to using these visas regularly.