As golf course managers around the country try to wrap their heads around how the Affordable Care Act will affect operations in the future, it is clear that another federal initiative, the H-2B temporary worker program, is ailing and in need of medical attention.
A federal judge in Florida ruled March 4 that the Department of Labor, which oversees the program, along with the U.S. Department of Homeland Security and the U.S. Citizenship and Immigration Services, does not have jurisdiction in deciding legislative regulations affecting the program.That's right. According to a federal judge, a government agency doesn't have the authority to legislate how it manage a visiting worker program it is charged with overseeing. Let the confusion begin.
The decision essentially shut down the program that provides temporary, seasonal labor to a host of industries, including golf course maintenance.
In response to the Florida ruling, the DOL ceased processing applications for nearly two weeks until March 17 when it filed an unopposed motion for a temporary stay of the ruling until April 15. The DOL says it will continue to process applications until then, however, the process could come to a halt again if another temporary fix or a permanent solution is not reached by that date.
Although the U.S. Department of Labor is continuing to process visa applications through mid-April, the events of the past month show how badly broken the system is and proves that its long-term status is, for now, up in the air.
On March 13, the Department of Labor and the Department of Homeland Security announced plans to issue a joint interim final rule by April 30 that will be consistent with the federal court decision. Employers who have missed that April 15 deadline to submit visa applications, however, run the risk of missing out on much-needed seasonal labor for the foreseeable future if a fix is not in place by the end of the month.
The fallout would be devastating for the economy from coast to coast.
The H-2B program allows for 66,000 total workers per year from 68 eligible countries, with 33,000 visas allotted for the first half of the fiscal year (Oct. 1-March 31) and 33,000 in the second half of the fiscal year (April 1-Sept. 30).
The program allows for many industries to fill unskilled, low-paying manual labor jobs with temporary workers, mostly, employers agree, because U.S. workers find the pay unpalatable. Some of the other industries served by the H-2B program, according to the immigration service, include landscaping, hospitality, lodging, food service, resorts and theme parks, cruise lines, construction, ski resorts, security and retail. According to the GCSAA, golf courses around the country utilize about 6,300 H-2B workers.
Jobs also must be advertised locally to give resident workers an opportunity to apply. One superintendent said he received one local applicant when advertising openings for about a half-dozen seasonal positions he typically fills with H-2B workers.
The H-2B program allows for 66,000 total workers per year from 68 eligible countries, with 33,000 visas allotted for the first half of the fiscal year (Oct. 1-March 31) and 33,000 in the second half of the fiscal year (April 1-Sept. 30).
H-2B is hardly a perfect system. Even when it works as planned, it is a gamble for employers seeking seasonal workers. If the six-month cap of 33,000 workers nationwide is reached before the deadline, the department must cease processing applications, and does so without warning, leaving employers in the cold until the next fiscal period. That was the case in January, when the cap was reached for the first half of fiscal 2015 with two months to spare.
The most recent troubles affecting the H-2B program started in March, when U.S. District Judge M. Casey Rodgers ruled that the Department of Labor lacks the authority under the Immigration and Nationality Act to decide regulations affecting the visiting worker program. In response, the department said it no longer could process applications.
Rodgers' ruling was in response to a suit filed by a Florida restaurant server who claimed rules implemented by the department hindered his job opportunities.
In 2008, the department published formal regulations on the labor-certification process, and implemented even stricter rules four years later that, among other things, decreased the number of H-2B workers an employer could hire and reduced their length of employment. In 2012, however, Rodgers struck down those rules as invalid, forcing the department to revert to its 2008 H-2B rules.
Rodgers' ruling is awaiting appeal in the U.S. Circuit Court 11th Circuit. Meanwhile, thousands of employers throughout the country and tens of thousands of workers from around the world are left waiting.