June 15 2009 12:00 AM

The H-2B program was designed to legally and temporarily supply immigrant workers to American industries that struggle with labor shortages, especially those in the service areas (hotels, restaurants) as well as seasonal businesses. So now, with a lagging economy and unemployment rates reaching record highs, the need for the program no longer exists, right?Wrong.

However, many opponents of the program—which is no stranger to fierce criticism—believe that now is the perfect time to eliminate H- 2B. These people feel that if there is a demand for labor, whether that labor be temporary or permanent, it should be filled by out-of-work Americans.

At first glance, this position does make sense. It would provide those seeking employment with jobs, while simultaneously meeting the seasonal labor requirements of a number of industries. However, many landscape contractors are finding that a disconnect exists between unemployment and seasonal labor. “When we ran our ad for H-2B this year, out of 150 labor jobs that I advertised for, I think I got responses from three interested parties,” says Maria Candler of James River Grounds Management, Inc., Glenn Allen, Virginia. “To be fair, that is a huge increase from the previous season’s number. Last year, exactly zero people responded to our ad and when push came to shove, the three people who responded to the ad this year didn’t even bother to show up for an interview.”

It’s important to remember that the H-2B program is intended not only to mitigate labor shortages, but to also fill positions that American workers choose not to. It’s not that Americans don’t want to work. Everyone knows that’s not the case. But even in these economically tumultuous times, American workers don’t want to fill H-2B positions. More often than not, the wages earned by those participating in the H-2B program are not competitive with the income provided by unemployment insurance.

Opponents of the program are quick to offer a simple fix to this problem: simply raise wages. It is true that the more you are willing to pay, the more people will be willing to work. However, this theory is flawed for a number of reasons.

Mainly, it makes the cost of doing business prohibitive. “Economists and pundits who recommend raising the hourly rate until American workers become interested in taking these positions have probably never had to run a business,” says Tom Delaney, director of government affairs for the Professional Landcare Network, Herndon, Virginia. “If employers keep raising their wages, they’ll soon price themselves out of business.” Many contractors share Delaney’s point of view. “I think every owner in the landscape contracting business would like to be able to pay their workers more,” says Steve Miserocchi, president and owner of Cara-Tera Landscape and Statuary in Kirkwood, Missouri. “It’s hard work and it’s really not as simple as a lot of people think it is. But unfortunately, people are only willing to pay so much to have their shrubs trimmed or their lawn fertilized. I just can’t afford to pay my guys $30 an hour, because the marketplace wouldn’t support it. Paying those kinds of wages is not a reality for me or most other owners in this industry. It would most likely put us out of business.”

It’s also worth noting that most people who are out of work tend to look for jobs within their current industry. It is unlikely that an unemployed blue collar worker is going to make the jump to landscape maintenance. But even those who cannot continue to work in their current field are unlikely to turn to seasonal labor. It is becoming increasingly common for states to train their unemployed workers for employment in fields that can provide sustainable job opportunities. “State employment agencies are making an effort to retrain unemployed workers in fields where people can enjoy new careers, like medical records keeping, for example,” says Delaney. “These workers are not being trained to be laborers on landscaping crews.”

Opponents of the program are quick to point out H-2B’s flaws. Foremost among them is the assertion that H-2B leads to illegal immigration. In fact, the exact opposite is true: H-2B discourages illegal immigration. This job classification is the only way for employers to legally fill peak season workload vacancies using foreign labor. Without the H-2B program, business operators would be forced to violate labor laws by hiring illegal workers in order to remain in business.

Additionally, in order to continue to use H-2B, employers must guarantee that their workers will not remain in the country when the peak season concludes. If it is discovered that employers are retaining the services of their H-2B workers longer than the allotted time period, the employer will be subject to a number of penalties, including action from the State Department.

Despite the controversy surrounding it, the H-2B program has proven to be one of the most effective ways to deal with labor shortages within the green industry. It allows employers a safe and legal means to access a steady pool of reliable labor. In addition, because the program is so heavily scrutinized by the government, it ensures that the rights of both the employer and the worker are protected.

For example, the wages paid to H- 2B workers are set by the Department of Labor and are commensurate with the prevailing wage for the duties being performed. Many employers also choose to take some extra steps to ensure that their new workers are comfortable, arranging transportation and housing, providing basic materials and cash advances and helping their workers obtain state I.D. cards and/or driver’s licenses.

Although this program can be helpful for your company, securing H-2B workers can be complicated. The application process requires tremendous amounts of paperwork and pre-planning. You must provide documentation to show that your need is temporary and that you have tried to hire all available American workers. Even if you do meet all these conditions, there’s no guarantee that you’ll be approved. Last year, an Illinois contractor missed out on getting new workers because his paperwork was filed one day too early.

Because applying for H-2B workers is such an exacting process, many companies work with agencies that do recruiting and file the paperwork for them. These companies take the pressure off of you by simplifying the process. They know what paperwork is required and when it needs to be filed, so you don’t have to spend time figuring out the details, and possibly getting something wrong. You’re paying them a fee to ensure that everything is correct, that every “i” is dotted and every “t” is crossed. The biggest problem with H-2B is the cap of 66,000 placed on the program. In other words, no more than 66,000 foreign workers can be brought to work in the United States under the H-2B program for each fiscal year, which lasts from October 1 to September 30.

The 66,000 cap for the year is split into half for two six-month periods. This may sound like a large number, but keep in mind the number of industries that are drawing on the same 66,000-person cap. It’s not just the green industry; all industries must share the total— retail, restaurants, hotels, home building, asphalt and paving, etc.

To create a little more flexibility, in 2005 the government began allowing for returning worker exemptions. There was a need to somehow accommodate more workers without raising or eliminating the cap. So an exemption was devised to free workers who had previously participated in the program from being counted as part of the cap. Unfortunately, it was never made permanent, and the exemption has since lapsed, creating a headache for users of the program.

The good news is that efforts are currently underway to remedy this problem, as legislators are currently working to pass a bill that would renew the exemption. The Save Our Small and Seasonal Businesses Act of 2009 was introduced in February, and if passed it will once again provide cap relief for users of the program.

The lapse of the returning worker exemption is a cause of great concern for many contractors. “The program is essential to my survival as a small business owner,” says Candler. In the past, Candler has solicited up to 140 H- 2B workers per season and maintains that without them, she would not have been able to grow her business or fulfill her contractual obligations to clients. “If I don’t get any H-2B workers, my business is in trouble. The irony is that I will actually have to take jobs away from my permanent American workers,” she explains.

Candler is not the only one who sees the lack of H-2B workers as a threat to American jobs. “In my opinion, the shortage of H-2B workers is responsible for the loss of American jobs,” says Kurt Kluznik of Yardmaster Inc., Painesville, Ohio. “Now that the exemption is gone, it’s getting Circle 120 on Reader Response Card harder to secure H-2B workers and it’s making business owners reluctant to expand their operations. Not knowing whether or not we were going to get our H-2B workers back this season made me reluctant to staff full-time positions.” The lack of H-2B workers affects more than just the landscape contracting industry. Many businesses that count on landscape contractors for revenue are also affected.

“A truck dealer from Ohio recently told his congressman that he lost nearly a million dollars in new truck sales and maintenance and service contracts,” says Delaney. “The dealership’s customers, many of whom are landscape contractors, were forced to cancel their contracts because they didn’t have the workers they needed to do jobs that were going to pay for the contracts. You have to remember, this affects entire communities.”

Most contractors can’t make enough positive statements about the foreign laborers they’ve received through the program. “They’ve really helped my company to grow,” says Miserocchi. “They’re great guys, and seem to enjoy the work. They work hard, and walk away with a real sense of pride.”

Jeff Korhan, founder of True Nature Inc., Naperville, Illinois, agrees with Miserocchi. “I ran a landscape contracting company for nearly 20 years, and I could always count on H-2B workers to stabilize my workforce. I could count on them to be willing to come back every year. They’re just really great workers.”

H-2B works. It provides landscape contractors with a steady and dependable workforce without taking jobs away from Americans. It discourages illegal immigration and protects the rights of all the parties involved. However, just because most contractors who use H-2B find success does not mean that the program will remain law. Contractors must take it upon themselves to advocate for the program. Contact your local representative and join or support comprehensive reform coalitions. Do your part—it’s worth it.