Labor Department Denies Employer H-2B Visa Workers, Say Companies Must Put Americans First



Board of Alien Labor Certification Appeals Rejects DDM Hauler’ Inc’s Claim—Stands Up For American Workers

This week the Board of Alien Labor Certification Appeals (BALCA) upheld the Department of Labor’s (DOL) decision to deny DDM Hauler Inc’s request for seasonal H-2B workers.

Why?  The DOL claims that the employer did not show proof that they had tried to hire American workers first by placing ads in the local newspapers—as required by law.

Numbers USA, a nonprofit educational foundation focusing on immigration, summarized the proceedings as follows:

On their initial appeal application, DDM Hauler asked for 17 H-2B construction workers to be employed from October 1, 2017 to July 1, 2018. They were notified about the deficiencies in their application by DOL on July 21. The employer responded to a few of the issues and then asked to increase the number of H-2B workers to 18.

The DOL told the employer that in order to be eligible for H-2B visa workers you must first contact qualified employees who have been previously laid-off and advertise in local newspapers for American workers.

DDM Hauler missed its deadline of Aug. 31 to respond to the inquires and were notified on Sept. 14 that they had been denied. DDM responded to the denial notification that there were no former workers to contact and claimed that they had placed newspaper ads.

DDM Hauler claimed they had placed ads in the Odessa American newspaper on Aug. 6 and 7 but did not provide any copies of the ads to DOL. In their revised application DDM Haulers crossed out the August dates and instead wrote in Oct. 2, 2017 and Sept. 28, 2017. These dates had not happened yet at the time they submitted their application.

The DOL maintained its decision to deny the employer’s request for H-2B workers.

Basically, the company failed to advertise its position sufficiently to Americans, and then tried to fill its “labor shortage” with temporary foreign workers—who will work for less, and will have less bargaining power when it comes to hours or working conditions.

This is a big win for American workers, and will hopefully become a precedent.

Furthermore, these conclusions are obvious when looking at situations where temporary foreign workers have been denied market-access.  In various towns in Maine, the denial of H-2B visa workers forced companies to hire American workers, offer better (and more flexible) hours, pay more, and improve the safety of their workplaces—all good things.  Clearly immigrant labor is distorting America’s market.

Of course, H-2B visas are not unique in this respect.

Another frustrating guest worker program is the Summer Work Travel Program (SWT), which can be summarized as follows:

The SWT program is fairly straightforward: it finds summer jobs for 100,000 foreign students per year (for a small fee).

The program partners with a multitude of employers, who like hiring foreign students because they: (i) pay no Social Security tax, (ii) no Medicare tax, (iii) require no health insurance, (iv) are not bound by standard wage agreements (employers get cheap labor), (v) and employers have greater leverage over foreign students than locals.

Essentially, the program prioritizes foreign students over Americans, making it harder for American college kids to find summer work—this contributes (in a relatively small way) to the ballooning of student debt, the lack of work experience, and that distortion of America’s labor market.

The government needs to start putting American workers first—Trump’s agenda is a good start, but Congress needs to get involved.

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