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My kids are of the age where I am still watching movies like Minions. Truth be told, I like them. Indeed, on some level, particularly with respect to their soundtracks, I think they’re made with adults in mind. According to Merriam-Webster, the definition of a “minion” is “a servile dependent, follower, or underling,” generally to someone powerful (or someone who perceives him or herself to be powerful). The origin of the word is French.
I’ve used the word “minion” in these articles from time to time, generally with reference to Stephen Miller, the President’s policy advisor who reportedly is the primary architect of the President’s restrictionist immigration policy, including the President’s recent proclamations restricting entry of some foreign nationals to the United States.
On April 22, 2020, the President signed a proclamation temporarily suspending the entry of certain “immigrants” into the United States in light of the COVID-19 pandemic. Exactly two months later, on June 22, 2020, the President signed yet another proclamation continuing his original proclamation and also now suspending the entry of certain “nonimmigrants” into the United States. As I’ve previously noted, the practical effect of these proclamations is not much since most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did the President put out this second proclamation? As always, politics as usual. Red meat to his base.
It has always amazed me, however, that Mr. Miller, himself a descendent of immigrants, could be advocating for such restrictionist positions. According to published accounts, Mr. Miller’s family arrived through Ellis Island from what is now Belarus. His relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and became very successful. It’s a great American success story.
Is Mr. Miller ashamed of his immigrant past? I am open to any reasonable explanation as to why Mr. Miller advocates for these anti-immigrant positions.
The President’s most recent proclamation essentially blocks access by U.S. companies and others to certain nonimmigrant workers until at least the end of 2020, including H-1B, H-2B, J-1 and L-1 nonimmigrants (and their family members). As reported in one of my local newspapers, the Albany Times Union, the President’s proclamation will negatively impact employers, families, colleges and universities, health care facilities, and seasonal businesses. The President’s proclamation will also delay America’s economic recovery from the COVID-19 pandemic.
The H1-B is a visa that allows a foreign national to work temporarily for a U.S. employer in a specialty occupation position such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. The H-2B is a visa that allows a person to work in the United States for a U.S. employer in a seasonal field outside of agriculture, like a hotel worker in a resort community. The J visa refers to, among several other possibilities, an exchange visitor and under the President’s most recent proclamation is limited to those working in specific capacities, like as a camp counselor, teacher, au pair, or pursuant to the J-1 summer work travel program. Finally, an L visa refers to intracompany transferees who work in positions that require specialized knowledge or who are working in an executive or managerial capacity.
The continued use and availability of these visas to a large cross-section of U.S. businesses and industries is absolutely essential to a successful economic recovery from the COVID-19 pandemic.
The premise behind the President and his minion’s policy is to protect U.S. workers, particularly as we work (no pun intended) our way through the economic consequences of the COVID-19 pandemic. The White House has said that these proclamations will protect or create over half a million jobs. (Although significant, it’s a drop in the bucket when you consider the overall job loss since March 2020.)
But the President and his minion’s basic premise is still fundamentally flawed. And I’ve written about this ad nauseum in this space over the last several years. Bottom line. Immigrants, whether those here temporarily or those who strive to be here permanently, are a positive influence on the U.S. economy. You can find any number of resources that support this premise, but for those who may suspect my views, feel free to check out The George W. Bush Presidential Center’s “Economic Growth Initiative”, which does an excellent job debunking all these ridiculous myths about the negative impact of immigrants on our nation and our economy.
Forget right and left. Let’s move forward, all of us, together.
You can’t make this stuff up. This is the world that I and a few other local colleagues of mine work in.
So, I asked my wife what she wanted to do to bring in the New Year (not that we usually do anything more than have dinner with some close friends), with the caveat that no matter what it was, I had to be home … in front of my computer … at midnight … because I had work to do. That’s right, many of my colleagues and I (on the East coast anyway) were at our offices or at our homes in front of our computers working as the clock struck midnight. And then mayhem ensued, and I promise you, it was not fireworks or noisemakers. Let me explain.
One of the visa programs that some of my clients use is the H-2B nonimmigrant visa program. The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions) to accept “temporary” non-agricultural employment in the United States (e.g., landscape workers, ski resort employees, etc.). Before doing so, however, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during a recruitment period.
Like some other visa programs, there is an annual numerical limitation for this visa program; specifically there are 66,000 H-2B visas that are available in each government fiscal year. Also like some other visa programs, there are more companies filing applications for a temporary labor certification from the USDOL than there are visa numbers available.
Of the 66,000 worker positions that are available annually, 33,000 are allocated to each half of the fiscal year. This allows industries that traditionally have opposite seasons (e.g., summer beach resorts v. winter ski resorts) to have a “fair” chance at participating in the H-2B program to obtain necessary temporary workers. Because of the incredible demand associated with the H-2B program (indeed even our President allegedly uses this program for his resorts), H-2B applications are now date and time stamped to the millisecond in order to establish the order of submission. Applications are processed by the USDOL in the order that they’re received. And for the second half of the government’s 2018 – 2019 fiscal year, the period for filing a temporary labor certification with the USDOL commenced one millisecond past midnight on New Years Eve.
As the New Year rang in, the USDOL later reported that there were applications for 97,800 workers that were about to be filed by an “unprecedented volume of simultaneous system users.” The USDOL noted there were 22,900 server login attempts on January 1, 2019 versus a mere 721 attempts in the same period on January 1, 2018. Not surprisingly, the government’s online filing system crashed. The exchange that went on over the next couple of hours, well past midnight, on the American Immigration Lawyer Service’s (“AILA”) H-2B attorney Listserv, bordered on a combination of sad, pathetic, and ridiculous. It was also really so unnecessary.
Readers of this piece know how much I long for meaningful reform to our immigration system. There are many substantive examples that I’ve written about over the past few years. This is not one of them. This is a procedural reform, somewhat selfishly written for sure (as anyone who knows me knows that I can barely stay up to 9:00 pm on a normal day), but it’s important.
What kind of program requires employers (or yes, even their attorneys) to sit by their computer at the stroke of midnight, on New Years Eve no less, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company? And in today’s day and age, what kind of government is so ill-equipped to handle the unprecedented volume that they themselves created? Was the system not adequately stress tested? Was no one monitoring it (perhaps in light of the current government shut down)?
As annoying as this whole debacle has been, it’s not missing New Years that bothers me. Everyone who knows me knows that I’m usually sleeping at the stroke of midnight in any event. It’s that our government can’t come up with a better and more equitable system within which employers and their counsel can work to get things done. It really is ridiculous. The H-2B program is an absolutely necessary program for many employers. The process for participating in it, however, is unnecessarily cumbersome and needs to be reformed
For those companies (or their attorneys) filing outside of the eastern time zone, the filing time was an hour earlier for each time zone west you go.
 At that time, the USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
I am very fortunate to live in Saratoga Springs, New York. Last Friday was opening day at the Saratoga Race Course, and the weather cooperated. As a result, the crowds were out to watch racing at what I would argue is the country’s finest racing venue.
Friday morning, at about 5:30 AM, the line outside the track was all the way down Union Avenue, with thousands of patrons trying to be the first ones through the gates. About a month or so ago, I saw a similar line, but this line was filled with hundreds of people hoping to get summer jobs at the track. Those jobs are for what I will call “front of the house” positions, like gate attendants who take your money, people who sell programs, and food and beverage providers. Of course there are many more.
Those who weren’t in that line, however, were the back stretch workers who do all of the little things to make our track experience enjoyable. These are the trainers, exercise riders, jockeys, grooms, farriers, veterinarians, muckers, jockey agents, and all the other positions associated with horse racing.
While many of these workers are U.S. citizens, quite a lot of them are foreign nationals from Central America. Many of them enter the United States annually on an H-2B nonimmigrant visa. Quite frankly, these are positions that U.S. workers do not want to fill, and unfortunately for those in the horse racing industry, they are stuck trying to navigate the incredibly cumbersome (and expensive) process of obtaining an H-1B nonimmigrant visa for these workers on an annual basis… and in 2012, it got a lot worse.
The H-2B nonimmigrant worker classification allows foreign nationals who are citizens of certain named countries (with some limited exceptions) to accept temporary non-agricultural employment in the United States, after the employer has obtained a temporary labor certification from the U.S. Department of Labor by establishing that there were no willing, able, and qualified U.S. workers available during the period of recruitment.
The H-2B classification allows foreign nationals to provide “temporary or seasonal” services or labor, provided the employment does not displace U.S. workers “capable of performing such services or labor” and as long as the H-2B employment will not adversely affect the wages and working conditions of U.S. workers.
The temporary job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. Therein lies part of the problem with using the H-2B nonimmigrant visa for backstretch workers. Employers need to clearly show that their need is short-term; that is, regardless of whether or not the position by itself can be explained as not being a permanent one, the employer has to have only a temporary need for the worker (i.e., a seasonal, peakload, intermittent, or one-time need for the temporary services or labor).
This was not a particularly big issue until 2012, when the government changed its interpretation of the law, effectively making a program that is vital to the horse racing industry, and to our enjoyment of it 40 days a year in Saratoga Springs, that much more difficult. The government used to say that workers met the standards of “seasonal” and “temporary” because the same owner or trainer needed them in different locations at distinct times of the year. In 2012, however, the government’s interpretation changed, and its position now is that these backstretch workers are essentially year-round employees. Now, owners and trainers must file separate visa applications for each worker at each meet. Perhaps the larger stables can afford this, but the smaller ones cannot.
This is yet another example where immigration reform could be useful. Unfortunately, things in Washington are not looking promising. When our government cannot even resolve the current humanitarian crisis affecting all of the children arriving at our borders, what chance do the owners, trainers and backstretch workers have?