U.S. Issues New Rules for Temporary Immigrant Workers

Construction Worker - Image: Library of Congress

Construction Worker. (Photo: Library of Congress)

This week, the U. S. Department of Labor quietly issued a final rule that affects wages for immigrant workers who are in the U.S. under the H-2B temporary non-agricultural worker program. It’s a little-advertised change that could significantly raise the wages paid to immigrant workers covered by the program, generally those performing lower-skilled jobs in industries such as landscaping, construction, restaurants and hotels.  But some say the change may have a much wider economic impact.

The number of H-2B visas is capped at 66,000 per year. Currently employers are required to pay H-2B workers the prevailing wage in their industry. Now, by requiring the highest wage in some categories, DOL says that the new rules will better protect U.S. workers.

“This final rule improves protections for both U.S. and foreign workers by aligning wages with marketplace realities and ensuring that the H-2B program is used as it was intended,” said Secretary of Labor Hilda L. Solis in a press release on the DOL website.

Tamar Jacoby, President of ImmigrationWorks USA, an organization advancing business-friendly immigration reform, claims that the new regulation will harm American workers.

“If you put companies out of business or significantly shrink them, you don’t help American workers, you hurt them,” Jacoby told Fi2W.

ImmigrationWorks and the U.S. Chamber of Commerce issued a report in December which found no evidence that U.S. workers were disadvantaged by the H-2B program. Many immigration reform advocates, like Jacoby, are fans of the H-2B program, because it provides a legal path for immigrants to work in the U.S.

“For many of these workers, there’s no other way for them to come here and work legally,” said Jacoby.

Jacoby says most businesses that use H-2B workers are small and have a mix of American and H-2B immigrant employees. She uses the example of a small landscaping firm that could be forced out of business under the new rules which would require a wage increase to $11.00 an hour from $7.50 an hour, because union workers nearby have negotiated higher wages.

“The big issue underneath this is labor unions don’t like temporary work programs. They think temporary work programs are exploitative and undercut the work of Americans, and they’ve convinced the DOL that’s the case. These changes aren’t meant to improve the H-2B program, they’re intended to make it unusable,” said Jacoby.

Ross Eisenbrey, the vice president of the Economic Policy Institute, offers a different perspective. In a blog post on TheHill.com, he contends that the ‘prevailing wage’ is calculated using fuzzy math, “making it much cheaper to import foreign workers and discouraging U.S. citizens or legal permanent residents from applying.”

“The current rule allows businesses to offer wages that are often 25 percent or more below the average paid to laborers, maids and dishwashers – and dozens of other low-skill occupations that millions of workers already in the country are qualified to perform.  Jobs that normally pay $12 to $14 an hour get transformed into sub-poverty jobs paying $8 to $10.  In many areas with expensive housing and living costs, the H-2B program has lowered wages so far that U.S. workers can’t survive on them.”

Jacoby maintains that H-2B visas are essential to several regional seasonal industries, like seafood processing on Maryland’s Eastern Shore, and ski resorts in Colorado, among others. Eisenbrey cites a professor who claims that H-2B visas have contributed to the unemployment of American youth.

It’s these conflicts which show how complex passing national immigration reform will be. It’s tied up with fundamental beliefs about labor, economics, and fairness.

The U.S. Department of Labor did not return a request for comment.

Beginning on January 1, 2012, employers of these H-2B workers will be required to pay the higher of the following:

  • Wages established under an agreed-upon collective bargaining agreement.
  • A wage rate established under the Davis-Bacon Act or the Service Contract Act for an occupation in an area of intended employment, if the job opportunity is in an occupation for which such a wage rate has been determined.
  • The arithmetic mean wage rate established by the Occupational Employment Statistics wage survey for an occupation in an area of intended employment.
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