Nursery Associations Want H2B Rules Rescinded

Many state nursery and landscape associations are working in conjunction with the American Nursery and Landscape Association to express concerns over wage revisions to the H2B worker program.

The associations want the U.S. Department of Labor to rescind both the final H-2B wage rule and the March 18 H-2B proposed rule. The wage rule was scheduled to go into effect on Sept. 30, but on Sept. 22, Labor Department officials agreed to postpone the rule 60 days until Nov. 30. According to the Labor Department, the delay will permit the various courts involved in ongoing litigation surrounding the implementation of the rule to determine the appropriate venue for the resolution of all claims and allow the department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

The H-2B program allows the entry of foreign workers into the U.S. when qualified U.S. workers are not available and the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.

The department published a final rule on Jan. 19, 2011, that revised the wage methodology for the H-2B program and set the effective date of the wage rule as Jan. 1, 2012. On June 16, 2011, in response to a challenge, the U.S. District Court for the Eastern District of Pennsylvania invalidated that date and ordered the department to announce a new effective date within 45 days.

In response to that court’s order, the department issued a notice of proposed rulemaking on June 28, 2011, which proposed that the wage rule take effect 60 days from the date of publication of a final rule. After a period of public comment, the department published a final rule on Aug. 1, 2011, which set the new effective date for the wage rule as Sept. 30, 2011, without altering the substance of the rule.

The state associations and ANLA say the proposed changes will artificially increase H-2B hourly wages by 30-50 percent. Now that the implementation date has been postponed, more time is available for the associations to inform Congress members on their concerns over the rules changes.