hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


News & Issues April 2018


Big projects, few workers

Employers vexed by new limits on foreign labor


Anita Daly, vice president of Blue Spruce Nursery in Ballston Lake, shows off photos of some of the company’s landscaping projects. Blue Spruce has come to rely on foreign laborers in recent years and is seeking such 12 workers, about half its work force, this year through the federal H-2B program.

Joan K. Lentini photos


Contributing writer


When Anita Daly began to find it impossible to recruit all the workers she needed for her landscaping business a few years ago, she turned to a federal program that allowed her to import foreign laborers.

“We had to take strong action,” she said, because fewer and fewer dependable local workers seemed to be willing to take seasonal jobs that require heavy physical labor.

Daly’s business, Blue Spruce Nursery and Landscaping, applied for help through what’s known as the H-2B visa program, which allows employers to hire seasonal foreign workers for low-skill, nonagricultural jobs. The program is expensive and involves multiple procedural hurdles, including a rigorous process in which employers must prove they’re unable to attract qualified American workers.

“It’s a costly program for us that we’ve had to endure,” Daly said. “But we’ve received some very good workers, mostly from Mexico and Guatemala.”

Around the region, the H-2B program has become a significant source of workers for seasonal business operations that range from landscaping and masonry to summer carnivals and the backstretch at the Saratoga Race Course.

But this year, a lot of those employers are wondering whether they’ll get the workers they need. The number of summer workers available through the H-2B program is capped at 33,000 nationally, and this year U.S. Citizenship and Immigration Services said it received employer petitions for 47,000 workers in the first five days of the program.

In February, the immigration agency, an arm of the U.S. Department of Homeland Security, announced it had initiated a first-ever lottery system to determine which employer petitions it would process. As of mid-March, many local employers were still waiting to hear how they’d fared in the lottery.

In past years, Congress provided an exemption to the 33,000 cap for workers who were returning after participating in the program for at least three previous seasons. But a proposal to restore the returning-worker exemption has stalled.

Instead, Congress passed a measure in late March that gives the Trump administration discretion to exceed the cap on seasonal foreign workers. But it’s unclear whether or when the administration will choose to exercise that power.


Anita Daly of Blue Spruce Nursery is dwarfed by some of the landscaping company’s heavy equipment as she prepares for the busy summer season.


‘Increasingly difficult’
The H-2B program allows foreign workers to enter the United States for temporary, low-skill jobs in industries other than agriculture. (A separate H-2A program covers temporary farm labor, while the H-1B program covers foreign workers for highly skilled positions like those in the technology industry.)

The number of H-2B positions is capped at 66,000 annually, split between the summer and winter seasons, and no region or industry is given preference. Up to 33,000 visas are allotted for workers whose positions start between Oct. 1 and March 31, and another 33,000 for workers starting between April 1 and Sept. 30.

Before they can apply for H-2B workers, employers must show they’ve tried to hire American laborers. Among the requirements is advertising a job for at least two days in a newspaper with a Sunday edition. The U.S. Labor Department must certify that an employer is unable to attract American workers before immigration officials will consider the employer’s petition.

Amy Massey, the co-owner of Massey Masonry of Chatham Center, said that even after following all of the job-posting requirements, including listing positions through the New York State Job Bank, her company received interest from only a single applicant who wasn’t qualified.

Massey is seeking three employees through the H-2B program this year. She said she’s learned from experience that even if immigration officials approve her petition for foreign laborers, the workers won’t necessarily arrive. Last year, her workers’ entry to the United States was denied in U.S. State Department vetting – normally one of the last steps in the process.

“No matter what year it is, there’s always some concern, but every year it’s been increasingly difficult,” she said.

Leonard D’Arrigo, an immigration lawyer at the Albany firm of Whiteman Osterman & Hanna, said he files the extensive paperwork required to hire foreign workers under the H-2B program on behalf of numerous employers across the Capital Region. Many of them are landscapers or are connected to the Saratoga Race Course.

D’Arrigo said the earliest one could file for workers for the April 1 start date was Jan. 1. Because U.S. Citizenship and Immigration Services at that point was expected to grant applications on a first-come, first-served basis, that meant he and many other immigration lawyers were filing paperwork just after midnight on Jan. 1.

But in February, the immigration agency announced it would be randomly selecting petitions “to ensure that we allocate H-2B visas fairly and do not exceed the cap.”

The agency then announced after the fact that it had conducted a lottery on Feb. 28 and would return the fees paid by employers whose petitions weren’t selected.

Michael Scaringe, the owner and general manager of Skyview Landscape of Waterford, said that when he learned the visas were being awarded by lottery, “it was like we got the floor taken out from under us.”

Scaringe said he turned to the H-2B program last year because it had become extremely difficult to find local workers for his business. This year, he’s seeking 13 employees – about one-third of his work force – through the program.

If he doesn’t get them, he said, “I don’t imagine we’ll hit the ground running.”


Risks to small businesses
At Blue Spruce Nursery, Daly has applied for 12 workers to arrive April 1 and stay through Nov. 30. If her petition is approved, the foreign workers would account for half of her labor force. She started the application process in December.

She said many of the H-2B workers have returned to her company year after year, easing the learning curve she’d otherwise have to confront with new employees.

“Everyone got along, they were great people,” Daly said. “In the past, they used to exempt returning workers.”

But last year, she was only able to get a fraction of the workers she’d applied for.
“We were out begging for employees,” she said. “It was terrible.”

If the same thing happens this year, it means less work for her company.
“I may not be able to serve everyone I want to serve,” she said.

Daly pointed out that the unpredictability of the H-2B program falls harder on small and mid-sized businesses like hers, as larger operations have more flexibility to shuffle their work force among multiple projects if they’re short-staffed.

For smaller businesses, the H-2B laborers often represent a larger share of their total work force.
Massey Masonry, for example, has used the program to double its work force during the summer busy season.

Not getting that labor isn’t a small thing to these businesses owners.
“It would affect us tremendously not to have those workers,” Massey said. “If we don’t get the labor, we won’t be able to meet our contracts.”


In search of help
Employers say the general public seems to have a lot of misconceptions about the H-2B program, especially the notion that it’s a way to get cheap labor.

Scaringe said the program’s filing fees alone will cost him between $3,000 and $5,000 this year, on top of the $1,800 he’ll pay a lawyer. He also has to pay for the foreign workers’ transportation in and out of the country -- and their housing costs. And the H-2B workers must be paid the prevailing wage for whatever job they’re working.

But he said the cost ultimately is worth it, given how difficult it is to find dependable U.S. laborers each season.

Massey also stressed that the program is not a way to save money on labor costs.
“It’s not cheap labor,” she said. “It’s about the reliability factor. It’s why we go through it every year.”

D’Arrigo said there’s no financial incentive for employers to use the H-2B program rather than hire locally.

“What I’ve learned is they can’t find U.S. workers,” he said.

The types of jobs at issue typically require working outdoors in the heat and sometimes in light rain, in addition to being physically demanding. Another deterrent to local applicants is that the jobs are only seasonal. Most job seekers these days are looking for year-round work.

D’Arrigo said that 20 years ago, this wasn’t the case. High school and college students on summer break would take landscaping and other outdoor work. But few are doing so now in part because they have other, more attractive opportunities, he said.

All things related to immigration have been controversial in recent years, and a harder stance against immigrant workers may have contributed to Congress’ failure to renew the returning-worker exemption for the H-2B program. Some say the H-2B program is being affected indirectly by the Trump administration’s crackdown on illegal immigration.

D’Arrigo said it’s possible, for example, that stepped-up immigration enforcement has led to a surge in employers seeking a legal method of hiring foreign workers – employers who might in the past have turned a blind eye toward their employees’ legal status.

“Employers are getting scared straight,” he said. “People aren’t willing to take that chance anymore.”

Daly, a Republican who represented Clifton Park for more than 20 years on the Saratoga County Board of Supervisors, said she suspects politics has played a role in changes to the H-2B program.

She said the workers coming to the area on H-2B visas pose no threat.

“They’re not the kind of people who cause trouble,” Daly said.
Most, she said, work six days a week, send the bulk of their paychecks home to their families, and are careful to avoid any infraction that might jeopardize their stay in the United States. Their presence here is a positive thing for everyone, she said.

“It’s not taking American jobs away from Americans,” Daly added.


Legislative fixes?
A House bill to revive the returning-worker exemption, introduced in November by Rep. Jack Bergman, R-Mich., has drawn 33 co-sponsors – nine Democrats and 24 Republicans, including New York Rep. John Faso, whose district includes Columbia and Rensselaer counties. But the bill hasn’t made it out of committee.

Some don’t want to see the program expanded, and the opposition appears to cut across ideological lines. Asked about U.S. Sen. Bernie Sanders’s position on the issue of expanding the number of H-2B visas, the independent Vermont senator’s staff responded with an e-mailed statement that concluded, “Instead of importing more temporary workers -- which keeps wages low -- employers need to do a better job recruiting Vermonters to fill these jobs by offering living wages and decent benefits.”

As part of a massive spending bill approved in late March, Congress gave the Trump administration the authority to raise the annual cap on H-2B visas from 66,000 to more than 129,000. But the measure doesn’t require U.S. Citizenship and Immigration Services to raise the cap at all, so it’s unclear whether any relief is in sight for area employers who depend on the program.

D’Arrigo said the immigration agency raised the cap last year, but only by 15,000 workers – and it didn’t do so until July, well into the summer work season and too late for many employers to find it worthwhile.

D’Arrigo and others said there’s no timetable under which the immigration agency and the U.S. Department of Labor must decide whether to raise the cap this year.

“We don’t know what their timeline will be,” said Paul Mendelsohn, vice president of government relations for the National Association for Landscape Professionals.

His group, based in Fairfax, Va., represents thousands of landscaping firms across the country and has been lobbying Congress to allow for more H-2B visas, either by raising the cap or by keeping the returning-worker exemption.

Mendelsohn said he’s optimistic the administration will move more quickly than it did last year to issue more visas.

“We had a lot of support on Capitol Hill,” he said.

But for some area employers, it’s already too late to get a running start at the 2018 season.
Scaringe said in an e-mail March 23, that even after an application is processed and approved, it takes up to four weeks for workers to arrive in the United States.

“They have not even begun to process,” he said. “Therefore, we will not have the necessary labor to start our season with.”