Principals of Responsible Use of the H-2B Program for Landscape Contractors

Landscape companies that uses the H-2B program should be aware this next season will be critical for the program, according to Debra Holder, CEO of the Associated Landscape Contractors of America (ALCA). The ALCA predicts the actions and those of the agents hired will have impact on this next season and possibly for many seasons to come. As a user and beneficiary of this federal program, contractors have a responsibility that not only affects their companies, but the landscape industry as a whole and all the other users of the program nationwide. Immigration issues, coupled with national security concerns, have made the H-2B program more contentious and scrutinized.

The vast majority of companies use an agent for H-2B. Contracting companies must hold agents responsible for the information on the forms, as these practices are done under their names.

Just as you check out your subcontractors, you should do the same with your H-2B agent to protect your interests.

The H-2B program has a fiscal year limit of 66,000 visas issued. Visas H-2B employers obtain, but do not use, count towards the cap. It is common for H-2B employers to request some additional workers to serve as replacement or additional workers over the course of the season. It's inevitable, also, that the federal requirement that employers file 120 days before workers are needed causes some overestimation. Don't let your agent talk you into increasing the requested number of workers beyond what you really need, advises the ALCA. If the USDOL determines that an employer has requested significantly more workers than it can employ, it may be investigated for immigration fraud.

The number of workers requested, whether or not they come to the U.S. to work, are counted by the Bureau of Citizenship and Immigration Services in a formula to calculate the 66,000 cap. The cap was met by March in 2004 (the fiscal year begins in Oct.). The ALCA believes there is significant evidence that there had not been 66,000 visas issued at that time, i.e., employers requesting significantly more workers than they needed were responsible for shutting the program down early.

The Consul Generals Office at the U.S. Consulate in Monterrey, Mexico has notified agents and recruiters that approved petitions and visas cannot be legally ?EUR??,,????'??traded,?EUR??,,????'?? loaned or purchased between companies. Workers admitted to the U.S. under H-2B status must be employed by the employer whose name is on the approved visa petition.

Some legislators seek to expand the program, but others are looking for evidence of H-2B program abuse to curtail it.

Reminders and Contacts

Make sure to begin on time, exactly 120 days before you need your workers.

Make sure all applications contain two pre-addressed ?EUR??,,????'??next day service?EUR??,,????'?? envelopes to save every day possible in the transfer of paperwork between federal offices. (You can hand deliver your application to the State Department of Labor processing the certification application).

If the state questions your H2-B needs, you'll need to contact the ?EUR??,,????'??alien labor certifying officer?EUR??,,????'?? in the USDOL regional office. If you still have problems, call Charlene Giles of Agr. Labor Certification at (202) 693-2950; email: giles.charlene@dol.gov.

Questions to Ask When Using an H-2B Agent

The following questions are suggested by the ALCA:

1. How long have you been doing this?
2. How many clients do you have?
3. In what industries do you specialize?
4. Provide me some landscape companies names as references.
5. Do you specialize in H-2A or H-2B?
6. How many USDOL labor certifications were denied that you filed? Did you appeal the denials successfully?
7. How many CIS visa petition applications have you had denied?
8. Is your company full service? i.e., do you do all aspects of the application processing - recruiting, other worker logistics? Please, describe what parts you do and what is my responsibility.
9. Please explain how you charge for your services; include all charges beginning to end.
10. Do you guarantee your workers? How long does it take to get a replacement?
11. Has the U.S. Consulate, the DOL or USCIS ever taken action against you that could affect your processing of applications or visas in your name?
12. Do you have objections to me recovering some or all of the cost of your services from my workers? If I do, will you disclose this fact to the workers at time of recruitment
13. How timely have you been in getting workers to the company on the desired date?
14. How will the visa cap affect me this year?
15. How will you expedite applications this year to avoid me getting caught on the date the cap becomes effective?
16. What will happen if my application gets caught by the 66,000 cap?
17. Who is the person that will answer my questions during the process? Is the agent easily accessible? How will the system be tracked so I know what is happening from the day my application is sent until the day I receive my workers?
18. How long does the process take at each step? What are the time limits imposed on the government agencies for processing applications?
19. What is the process to resolve client - agent conflicts?
20. How do you ascertain that the workers you provide are well suited to my needs?
21. Can we get the same workers back next year?
22. Am I required to furnish housing? If so, does the law require me to pay for the housing? If not, how do they obtain housing and transportation?
23. Do the workers have drivers licenses?
24. Who is responsible to do the advertising?
25. Can you help with establishing my dates of need (seasonality requirements)?