President’s Obama’s Department of Labor (DOL) reversed a Bush era rule from 2008 that had expedited the process for hiring the H-2B nonagricultural temporary workers. In 2011, the Obama DOL cited the fact that it found that many employers were violating the program’s rules and asserted that its lengthier process would fix that. A new Government Accountability Office report proves that the agency was wrong. The more complex, onerous, and bureaucratic process is leading to more violations.
Many violations in a regulatory regime could indicate two very different problems. It could mean that many employers are intent on beating the rules, or it could mean that the program is so bureaucratic and complex that technical violations are inevitable. In H-2B’s case, where nearly all violations are minor, it is clearly the latter.
The Obama administration thought bureaucracy would increase compliance
For decades prior to 2008, DOL regulations required an employer to seek a temporary labor certification from DOL to prove that U.S. workers were unavailable at the local prevailing wage for the job. DOL would only approve the employer to hire the H-2B worker if it affirmatively demonstrated that no U.S. workers took the job when offered it at the local prevailing wage for the occupation. DOL would scrutinize the evidence in advance of approving the hire.
This certification model was never easy for the agency to perform in a timely manner, but as demand spiked in the early 2000s, it became even more difficult, so in 2008, the Bush DOL implemented a new approach under which employers would attest that they followed the recruitment protocols without having DOL substantively review each employer’s evidence and issue a certification. Instead, DOL would audit employers after the approval and fine or ban employers that willfully violated the rules in any significant way.
DOL noted that it used the attestation‐based approach for other immigration programs and that DOL already has to take an employer at its word that it will follow the H-2B rules until it conducts a post‐employment audit, so audits would be necessary either way.
In 2011, when DOL first proposed to end the Bush DOL’s attestation model, it stated, “Cases audited after certification by the OFLC in the 2 years since the adoption of an attestation‐based program demonstrate a pattern of non‐compliance or avoidance of demonstrating compliance.” It made no effort to show whether compliance had increased or decreased since the adoption of the 2008 attestation rules, nor did it detail the percentage of serious violations. The mere existence of widespread non‐compliance was enough to eliminate the more streamlined system.
In 2012, DOL finalized the rule mandating pre‐employment evidentiary reviews, stating that “the results of the audited cases demonstrate that an attestation‐based process does not provide an adequate level of protection for either U.S. or foreign workers.” It rejected commenters concerns about how the reported audit results failed to differentiate between serious violations that warranted disciplinary action and technical violations that didn’t. DOL stated, “regardless of the type of violations or their consequences, our concern is that these audits evidenced a pattern of non‐compliance with program obligations toward workers, regardless of the degree of such non‐compliance.” I interpret this double “regardless” sentence to mean that violations were, in fact, generally minor.
The Obama H-2B rule did not increase compliance
Thanks to litigation alleging that DOL didn’t have independent rulemaking authority over the H-2B program, the 2012 rule was never implemented, but DHS and DOL jointly issued a similar rule that finally ended the attestation process in April 2015. In April 2020, the Government Accountability Office (GAO) released its first report on the H-2B program since the rule changes took effect. We now can see that the rescission of the attestation‐based certification model did not reduce violations.
Figure 1 shows that not only did compliance not increase, there was a 20‐percentage point decline in the share of employers in 100 percent compliance with program rules from 2010 under the attestation model to 2018 under the certification model. This was a decline from 55 percent in compliance in 2010 to 35 percent in 2018. If DOL were consistent, it would revert back to the attestation model based on its finding of widespread noncompliance.
H-2B’s complexity cause H-2B violations
The majority of employers are not desperately searching for ways around the rules. Instead, the H-2B program is so bureaucratic and complex that violations are inevitable.
Figure 2 shows that of those 2018 audits, DOL found that nearly all the H-2B violations were minor, not warranting anything more than a warning letter. Despite nearly two thirds of employers having a violation, 96 percent of employers were either in complete compliance or had only minor violations. GAO didn’t review all the reasons for the warning letters and comments only that “several warning letters noted violations related to the period of employment of H-2B workers, such as failing to notify OFLC when H-2B workers left their jobs earlier than planned.”
It is difficult to explain briefly how complex the H-2B program can be, but there are about, by my count, 170 separate H-2B rules that apply to employers and workers. Many of the rules are exceedingly complex to understand and follow. Others, like reporting when a worker goes home, are mundane but easy to overlook. There are two exceedingly complex wage rules that Congress has defunded the enforcement of, but which DOL still insists create some kind of obligation on the employer possibly in the future.
Some H-2B rules seemingly contradict others in ways that create confusion, such as 20 CFR § 655.40(b)‘s requirement to conduct recruitment actions in 14 calendar days, while 20 CFR § 655.45(b) requires 15 business days of recruiting at the job site. Another requirement to provide free housing to itinerant H-2B workers also doesn’t exist explicitly in the code of federal regulation at all and contradicts the plain language in 20 CFR § 655.20(c) allowing housing charges.
The attestation versus certification debate still matters because DOL is now again routinely exceeding its H-2B processing deadlines. In the two years before the Bush administration attestation rule, 38 percent and 29 percent of applications took longer than DOL’s 60‐day target. In 2009, when the rule took effect, 67 percent were delayed. DOL hasn’t published its performance from 2010 to 2011, but by 2012, DOL was processing 100 percent on time. It maintained a fairly high rate of timeliness through 2015—when the Obama rules took effect—but since 2016, delays have become much more pronounced. In FY 2020 through three quarters, the delays were nearly as bad as 2008 (Figure 3).
DOL should recognize the failure of the 2015 H-2B rules, streamline the processing of H-2B applications, and rescind many of its complex rules to end processing delays and increase compliance with the program. The Obama DOL’s experiment with more bureaucratic H-2B processing has clearly failed. It’s time for reform.