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Episode 49: Here's How H2B Visas Actually Work with Tom Bortnyk
166 Plays3 months ago
This episode Nate and Kyle talk all about the H2B visa program, its significance in addressing labor shortages, particularly in the event industry, and the application process. Tom Bortnyk, Senior Vice President and General Counsel for masLabor, explains the differences between H1B and H2B visas, the misconceptions surrounding H2B labor costs, and the importance of this labor in various national markets (seafood, resorts, events, etc.). The conversation also touches on the challenges posed by increasing costs, the need for cap relief, and the responsibilities of employers in the H2B program. Tom offers valuable advice for first-time H2B employers, emphasizing the importance of education and planning.
This episode is brought to you by Anchor Industries. Learn more at www.anchorinc.com
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Transcript
Introduction and Guest Overview
00:00:01
Speaker
Welcome back to another episode of Under the Vinyl. As always, I got my co-host Kyle. Kyle, how are you? Hanging in there, Nate.
00:00:13
Speaker
I'm alive. How are you today?
00:00:20
Speaker
welcome back to another episode of under the vinyl as always i got my co-host kyle kyle how are you hanging in their neck i'm alive how are you today I'm just glad you got your coffee so we could get through the rest of the day.
00:00:32
Speaker
Yeah, I needed it. i need to about need I think I need to do that myself. But we've got a great guest lined up for today. I think this is a hot topic in our industry, just with labor in general as
Role and Impact of Moss Labor
00:00:42
Speaker
a whole. um So we've got a good guest on to talk about kind of just labor and H2B and things like that. So we're going to jump right in here. I've got Tom. Tom, are you doing?
00:00:53
Speaker
Good. How are you? Good. Tom, if you could kind of tell us ah who you are, what what you do, and yeah, kind of what you got going on. So yeah, I'm i'm Tom Bortnick. I'm the Senior Vice President and General Counsel for Moss Labor.
00:01:08
Speaker
if you If you don't know who we are, Moss Labor is the leading provider of H-2A and H-2B visa services in the United States. Collectively, we're responsible for about 70,000 foreign workers a year.
00:01:21
Speaker
Probably about 40% of that are H-2B workers. And so we do a lot of work in the non-immigrant visa space trying to help employers solve complicated labor needs.
Visa Types Explained
00:01:34
Speaker
perfect Perfect. Now, I know in the news there's a bunch of things about H-1B recently. Can you just kind of give the listeners the differences between H-1 and H-2? I'm glad you asked because this is a lesson that that our own president needs to ah maybe get a better understanding of because he he actually is an H2B program user.
00:01:56
Speaker
ah President Trump has has done a number of you know media statements and things like that where he talks about supporting H1B. In reality, he's talking about H2B. So probably the best way I could describe the difference is that H-1B is really for specialty occupations.
00:02:14
Speaker
It's used a lot in the tech sector. You see kind of the large accounting firms, large tech companies making heavy use of the H-1B program, predominantly to bring in professionals from India and China.
00:02:28
Speaker
and of course that program is subject to a lot of scrutiny for for good reasons and you know just general political reasons what makes the h2b program different is that one uh it's really not designed for these sort of high paying jobs right it's for manual labor typically in labor intensive industries and it's more for temporary and seasonal jobs you know h1b is for year-round employment you can basically stay here for many years on an h1b visa with h2b it's really about solving kind of the the the labor challenges of businesses that experience significant fluctuations throughout the year
00:03:11
Speaker
So it's really about temporary jobs during peak periods of demand for certain businesses.
Importance of H-2B in Seasonal Industries
00:03:18
Speaker
And that's why it's heavily utilized predominantly by the landscaping industry, but also outdoor amusement, obviously events and weddings and hospitality.
00:03:28
Speaker
And some of these more traditional seasonal industries make heavy use of the program. Why does the tent and event industry rely so heavily on H2B compared to other labor options, you think?
00:03:40
Speaker
I think it's that so many event companies um do have that fluctuation throughout the year, right? i mean, it it stands to reason that, especially depending on what geography you're in, the bulk of your business might fall into the warm weather months, right? You may not be doing a ton of business over the winter.
00:03:59
Speaker
And so that creates a unique labor challenge because in order to sort of staff up and be able to fulfill all your obligations during the busy season, but You need a certain staffing level.
00:04:12
Speaker
But when when the tide turns and you start dwindling and you start doing much less business, you can't justify a staff of that size. So a lot of businesses, you know you you try to hire seasonal workers, you try to hire temporary help.
00:04:27
Speaker
Increasingly though, there are just fewer Americans that want to be employed on a temporary basis, right? American workers typically have more job opportunities at their disposal. You're seeing a lot more Americans, especially younger Americans going into the gig economy where they have true, yeah they can be an Uber driver, they can be DoorDash driver,
00:04:47
Speaker
They can do any number of things that give them greater flexibility. And that's really not the case with some of these very labor intensive seasonal jobs.
00:04:58
Speaker
And the more important thing is that if if you are interested in you know manual labor, if you are interested in very labor intensive jobs, you probably want employment, steady employment year round, right? you don't You don't want to take a job for for six, seven, eight months out of the year. you know You're looking for steady year round employment.
00:05:17
Speaker
And so in absence of a large number of U.S. workers that are ready, willing, and able to take those jobs, somebody has to do the work. You have to get your labor somewhere. You know, it's not like robots are going to replace the jobs anytime soon.
00:05:35
Speaker
So that's why increasingly a lot of these businesses are just turning to the H2B program.
Misconceptions about H-2B Visas
00:05:40
Speaker
So is there a misconception that it's cheap labor? 100%. hundred percent that's That's probably one of the biggest misconceptions. I'd say the two biggest myths in the H2B program are it's cheap labor and it's replacing American jobs.
00:05:56
Speaker
There's nothing in the data that bears out either of those two things. If you look at, I'll speak to the taking American jobs thing. As I mentioned, it's it's designed to fill a shortfall. Right.
00:06:07
Speaker
So there's no Americans being displaced as a result of it. In fact, as a condition of participating in the H2B program, you have to go through and actually try to recruit local U.S. workers.
00:06:20
Speaker
So there's actually a preferential hiring requirement. And so hiring foreign workers becomes sort of a last resort, not ah ah a first option. On the wage piece, the government sets the wage rate.
00:06:34
Speaker
You know, the the it's not a market-based wage where you can go in and pay people whatever you want. You literally have to apply to the government and say, this is what I want the workers to do.
00:06:45
Speaker
And these are the specific locations where I want that work to be performed. And the government has wage data that says this is the rate you need to pay if you're going to do that job in that geographic area.
00:06:58
Speaker
And of course, that those those government set wages are based on private sector employment, and they set it artificially high so that it actually becomes more expensive to employ foreign workers.
00:07:10
Speaker
Yep. I've always wondered, how are they determining what these people should be paid? is there Obviously, said there's data. So there's some formula they're running, and they're pulling data from other employers around the area to figure out.
00:07:25
Speaker
They're basically pulling people to figure what the best wage is. In a sense, so if you really want to dive into the methodology, the way it works, so the Department of Labor has the Bureau of Labor Statistics.
00:07:37
Speaker
It's a big bureaucracy that does a lot of data analysis about the labor market. What they do is they have a wage survey process called Occupational and Employment Wage Statistics, OEWS.
00:07:51
Speaker
And they basically go out and they survey private sector employers and they ask, you know, what what are your employees doing? You know, what what tasks are they doing as part of their day-to-day jobs? And how much are you paying them to do that?
00:08:04
Speaker
Then they go back and they sort of aggregate that and they compile it and they come up with a county by county determination so that in every geographic location in America, you can look up any occupational code.
00:08:18
Speaker
You know, every every job is broken into a very bureaucratic occupational code. And you can look up what a prevailing wage would be in that county. Now, where it gets interesting is you can get some really weird results.
00:08:33
Speaker
Right? Like you can go to any landlocked county in America and look up the prevailing wage for a ship captain or a first mate and the government will have to take lot of We had a client in the Pennsylvania that's one of the only tire manufacturers. They make specialty tires for like race cars and stuff.
00:08:53
Speaker
So they're one of the only true tire manufacturers in the Eastern United States. And sure enough, there's a tire builder wage data. And they say, well, how the heck do they get this wage data? I'm like, well, they must have surveyed you. They must have surveyed you on on what you pay your employees because you're the only one in the entire Eastern United States.
00:09:12
Speaker
So you're basically then just relying on somebody within that industry to set the wage, and that's how they're getting the and info. In theory, right? So it's it's based on, you know, in theory, it's supposed to be based on non-H2B employers, so people that are not using the program, and they're going to try to come up with a wage methodology that, you know, they they break it down according to skill level in the wage data.
00:09:36
Speaker
So you have anywhere from entry level to seasoned veteran, you know, at the at the upper end of the experience spectrum, where they set H2B wages is right at the mean. So it's sort of an average of all possible skill levels for an occupation averaged together to create one wage. That is the wage that has to be paid the H2B workers.
00:09:58
Speaker
And do you have to pay all your staff that wage or is it just your H2B staff? There is a concept called corresponding employment, and it's this idea that it it kind of harkens back to the whole point of the program, which the program is an America First program, right? You have the U.S. recruitment requirement, you have preferential hiring for U.S. workers, but you also have to ensure that you're not giving preferential treatment to foreign workers on the terms and conditions of employment, right?
00:10:27
Speaker
So there they created this concept called corresponding employment, which is that if you are a US worker doing that same job, you're entitled to the same benefits and terms and conditions and protections as the H2B workers. And that would include the wage rate.
00:10:44
Speaker
Now in the H2B program, they did kind of create a carve out if you are what they call an incumbent employee. So if you're employed in that job year round, you're kind of exempt from that corresponding employment requirement.
00:10:59
Speaker
But it would really apply in the case of seasonal U.S. hires. So if you do end up going out and you hire a seasonal U.S. worker, you really need to ensure that you're paying that seasonal U.S. worker the same or comparable wage rate as the H2B workers.
00:11:14
Speaker
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00:11:42
Speaker
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00:11:56
Speaker
So we've talked about the wages in the program. Everyone always talks about a lottery, which is what people kind of use to scare you away from joining the program, I'm convinced.
00:12:07
Speaker
Let's kind of dive into the application to the lottery. And then we can work our way through finally getting the people here. Sure. give us Give us the details of kind of the application process from kind of start to finish on the boots on the ground part
The H-2B Process and Challenges
00:12:22
Speaker
of it.
00:12:22
Speaker
Well, first of all, it's it's a bit of a misnomer to even call it a lottery, right? Because a lottery implies that you have winners and losers. That's sort of, you know, you get your your lottery ticket and you either are a winner or you're a loser and it's sort of a binary choice.
00:12:39
Speaker
The reality is a little bit more complicated than that. So just to start off, it's sort of important to understand when you're talking about the H2B application process, you're dealing with three separate federal agencies, right?
00:12:52
Speaker
You're dealing with the Department of Labor for all the things that i already talked about with wages and all that stuff. The U.S. s recruitment. You're talking about the Department of Homeland Security, which actually administers, they are the primary administrator of the H2B program.
00:13:08
Speaker
And then you have the State Department, which actually issues the visas. So Homeland Security doesn't issue the visas. That comes from the U.S. State Department at all the consulates and embassies around the country. So the process of getting H2B workers here is really that passing of the baton, right? It's moving from one federal agency to the next.
00:13:28
Speaker
Congress back in 1990 imposed a cap on the number of visas that can be issued in a single year, right? So it is capped at 66,000 by statute divided into two equal allotments. So every half of the fiscal year, you have an allotment of 33,000. So starting October 1st, you get 33,000.
00:13:49
Speaker
Next allotment becomes available April 1st. And these are B visas only. H to B, right. Yeah. yeah So there's a finite number that goes around.
00:14:00
Speaker
That cap is administered by the middle government agency, U.S. us s Citizenship and Immigration Services, which is part of Homeland Security. They're the ones actually administering the cap and counting it.
00:14:13
Speaker
The issue is they process on a first-come, first-served basis. So when you file your H-D-B visa petition, it's it's really how quickly you can file that petition with Homeland Security to get in before that cap allotment is exhausted.
00:14:28
Speaker
problem with that is that there's an entire government stage prior to that, right? You have to go through all these hoops with the Department of Labor. So the lottery came about not as a means of picking winners and losers per se, not in a direct way.
00:14:43
Speaker
It came about because there was so much attention on the fairness or lack thereof of a process where everybody submits their applications to DOL at the same time.
00:14:55
Speaker
They process it in some undetermined order. And the next stage of the process is first come, first serve. So if DOL happens to process your case earlier, you have an unfair advantage over someone who DOL just decided to, for whatever reason, process at a later time.
00:15:13
Speaker
Right. So the lottery was really a creation of the Department of Labor. to figure out an equitable way to to process applications and give priority to some over others.
00:15:27
Speaker
And that is sort of the primary determinant of how quickly you can get your petition to the next stage. And thus, you know, it becomes an indirect way of of kind of policing the cap and making sure that there's a an orderly process for doing that.
00:15:43
Speaker
So at what point should you really start preparing for that process? Well, ideally, you would start no later than October or November ah because the the filing window, the government loves ruining everybody's holidays. So the the filing window for H2B opens 90 days before the cap allotment becomes available. So if you backtrack 90 days from April 1st, which is when the spring visas become available, it's New Year's Day.
00:16:14
Speaker
So they ruin New Year's for everybody. Of course, back track from October 1st, it's July 3rd. So they're ruining another holiday there. So for the for the spring allotment, right, you're filing your application on January 1st. So New Year's Day, you're submitting that application and filing it off to the Department of Labor. So I take it your staff doesn't get a holiday on that day.
00:16:36
Speaker
we have We have a good time coming in the night before and you know having but turning it into a party as best we can as we submit application after application at the stroke of midnight.
00:16:49
Speaker
is there a So you're starting at midnight to put them in? It's it's it's an interesting tradition. It it started because we everybody got burned one year. So before they actually had the lottery, which gives you a three-day window to file applications, they actually did it by timestamp.
00:17:06
Speaker
So the sooner after midnight you press the submit button, that was your spot in line. Now, fortunately, they don't do that anymore. But you would not believe the number of longtime H2B clients that are superstitious about it. And they will ask us how soon. What time did you put it in?
00:17:24
Speaker
So we've just accepted our fate and said, all right, New Year's is ruined. We're going send everybody in and just submit them as quickly as we can. And then we'll have the next day off. And so what happens if you miss that deadline? is there i mean Is there any kind of grace period at all whatsoever? It's just like, sorry, you got to look.
00:17:41
Speaker
We're the government. certainly You can certainly submit your application after that, um but you're going to be at the back of the line, and chances are the visa allotment is going to be exhausted by the time they get around to your application.
00:17:56
Speaker
It's generally how it works. So then what's the worst last-minute scramble you've seen or you've had to do? well Because I'm sure there's a story there. I mentioned, you know, the October, November being kind of the latest to get started. And that's because there is a process for getting that wage determination that I mentioned.
00:18:16
Speaker
So that is a process that can take anywhere from one month, kind of on a normal timeline, to sometimes more than two months. And that all depends on how quickly DOL can turn those around.
00:18:28
Speaker
So i had ah we had a client that enrolled probably around Thanksgiving time. and they say, hey, I really want to make the New Year's lottery. How do I get in? Well, we have to turn around a prevailing wage and just cross our fingers and hope that DOL processes that in time, because if we don't have a prevailing wage in hand, we can't enter the lottery.
00:18:49
Speaker
And if we can't enter the lottery, then you're you're screwed on the visa cap, basically. Now, fortunately, in that case, you know, I don't know, DOLs grew, Hart grew three sizes that day, or they they they decided to you know throw us a bone.
00:19:06
Speaker
But they did manage to issue the prevailing wage, I think, December 30th. So right down to the wire it came down to. So what kind of information ah would a company need to gather in order to get everything ready for their initial application? Let's just say they're a first-time user of the program.
00:19:27
Speaker
Yeah, there's there's there's several things that you need to be thinking about as a first-time user. One is just figuring out what you need the workers to do. That's probably the first thing that you need to decide, right?
00:19:39
Speaker
Because the first stage in that process is that prevailing wage. It does take one to two months, generally. So if you're starting sometime in the late summer, early fall, yeah know that's kind of the ideal time when most folks get started.
00:19:53
Speaker
Those are the decisions you're going to have to make because you're really not going to get a second bite at the apple. If you if you file a prevailing wage determination and you list all your job duties, you get your prevailing wage back and then you say, oh, crap, I forgot this whole stack of duties that I needed the workers to do.
00:20:11
Speaker
Well, we don't really have enough time to turn around another prevailing wage determination. Right. So you're kind of stuck with what you have. So yeah, figuring out what you need the workers to do and how much you're prepared to pay.
00:20:23
Speaker
and we can do kind of a preliminary analysis. We can figure out, okay, based on the duties you gave us, this is what occupational classification we think it's going to be. This is what you can expect to pay based on the worksite locations you listed. in And you can kind of figure that out.
00:20:39
Speaker
Probably the next thing that's increasingly important is having good business documentation to substantiate your need. So one of the things the Department of Labor has done probably in the last five years is really crack down on employers that can't adequately demonstrate a temporary need.
00:21:00
Speaker
So these would be year-round businesses that don't really have that seasonal ebb and flow. So the department they want they want to see ah what a revenue ebb and flow? Is that ideally what they're looking for?
00:21:12
Speaker
They want to see a change to the labor need. And so they want to see that your business is not constant in all 12 months of the year. Now, there's a couple different ways we can show that. We can show that by revenue.
00:21:24
Speaker
We can show that by a breakdown of man hours. We can show that by if you have... you know, more contracts and in at a certain time of year than others. know, there's no strict requirements as to what type of evidence we have to show.
00:21:39
Speaker
But for new program users, the expectation from the Department of Labor is that you do show that you have a true seasonal need. And not just not just a need for workers during a particular time, but they want to see that you justify the actual number of workers you're requesting.
00:21:56
Speaker
So if you say, hey, I need 50 workers, You need to have good evidence that shows that you did your math, you know, whether it's a breakdown in man hours, a breakdown of employees relative to revenue or sales or whatever it is, you need to be able to show your work on how you arrived at that workforce.
00:22:14
Speaker
And that's sort of this, it kind of goes back to this idea of policing, fraud and abuse, right? They want to make sure, given that there's a finite number of visas available, They want to make sure that people are not inflating their labor need and saying, well, I need 100 workers when really I only need 50 or maybe I only need 10, right?
00:22:33
Speaker
New employers, ever since the Department of Labor instituted this registration process where if you're a returning user and you're not making year-to-year changes, either to the period of need or to the number of workers, you're sort of grandfathered in and they're not going to scrutinize you.
00:22:50
Speaker
That's good if you're a returning employer, right? If you're a returning program user, you kind of can escape a lot of the added scrutiny. It has given the Department of Labor a lot more time to focus on new program users.
00:23:03
Speaker
And so where we've seen you know returning users be subject to less scrutiny, that scrutiny has now amplified on the new employer front. So people just getting into the program are subject to a lot of scrutiny by DOL.
00:23:19
Speaker
So would you think then that's probably one of the biggest pieces of paperwork that that owners need to look at the most to really come up with those numbers and something they don't really think about?
00:23:31
Speaker
People that want to do the H2B program the smart way, it behooves them to do their diligence on the front end. Because if you can put together a thoughtful statement of temporary need, if you can basically write a letter, and this is something that if if you're working with an agent or an attorney, they can help you with this.
00:23:52
Speaker
Putting together a thoughtful, compelling argument as to why you meet the regulatory standards. will help avoid that scrutiny and give you it'll it'll get you that instant approval rather than a notice of deficiency where they start asking for three years' worth of payroll and very burdensome document requests.
00:24:11
Speaker
Kind of the reason that's important, again, this is all time-sensitive. USCIS, they process things first come, first serve. So if you experience a delay at the DOL stage because you're under scrutiny and you have to furnish a bunch of documents,
00:24:27
Speaker
That can be make or break on your case, especially if you're in a later lottery group. So if you're in the kind of front of the line, you're probably okay. You know you can survive some scrutiny.
00:24:38
Speaker
If you're borderline, every single day that goes by makes the difference between beating the cap or or not beating the cap. So if you get a seven-day delay as a result of scrutiny by DOL that forces you to turn over three years of payroll, that can be fatal to your case sometimes.
00:24:58
Speaker
Well, it kind of rolls us into our next topic here is just how much has HB increased over the years here? like you know I feel like you just keep hearing it that it keeps going up and up and up, driving the cost up, um which then people try to find more people that are local. And and you know that's really tough. The labor is just tough in general.
00:25:18
Speaker
But seeing that increased price, it kind of pushes people away. And then I think they kind of underestimate the housing, transportation, and compliance costs altogether to roll that all in. So just how does that cost how has that cost been increasing and what does that look like? And what do you think people underestimate the most?
00:25:37
Speaker
Pages have certainly gone up. I think that's that's one of the things that has has been most certain over the last few years is that wages have gone up in the program.
00:25:49
Speaker
And that is certainly a deterrent to at least some people getting into the program. On top of the wages going up, you have the uncertainty factor, which is that it's very difficult for you to run a business on a lottery system.
00:26:02
Speaker
I mean, you're essentially gambling every year of saying, I'm going to pay thousands of dollars to a consultant to help me with this. And I may come up empty handed. Right. There's a chance that ill I'll pay for all this professional work that goes into preparing this very complicated set of documents to submit to the government, and I may not even get my workers, right? I may get my workers late, right?
00:26:26
Speaker
That certainly factors in, and and there's a higher turnover rate and attrition rate in the program to people that have not been in it that long, right?
00:26:37
Speaker
So the long-time users, the people that have been using the program for five, 10, 20 years even they tend they tend to stick in the program whether they have a ah successful year or not under the lottery.
00:26:48
Speaker
And sometimes, some years they have good lottery results, some years they have bad lottery results, but they stick with it. If you're a new business, that's a tougher pill to swallow. And so we tend to see a higher dropout rate of people saying, know, I tried it last year.
00:27:04
Speaker
I'm not going to give it a go this year because it just didn't work out. And, you know, the the the cost factor, I think it really comes down to just the level of competition, you know, people getting into the program. Now, I will say demand for the program has sort of plateaued.
00:27:21
Speaker
it's It's been rather constant after a couple of years of pretty rapid growth. what's What's interesting to me is that we The predominant new program users that we're seeing are sort of in non-traditional industries.
00:27:35
Speaker
you know you've you've You've sort of plateaued as far as landscapers or hospitality or construction or some of these more traditional industries. With those folks, you're either sort of in it and you know the program or you're hanging out, avoiding it for as long as you can.
00:27:52
Speaker
What's been interesting to me is that as the economy changes, We're starting to see labor shortages elsewhere. We've seen increased demand from daycare centers or summer camps or just sort of these these very non-traditional uses of the program that are desperate for labor that are now turning the age to H2B because there's no other you know viable alternatives out there.
00:28:18
Speaker
and then but then it Yeah, absolutely. But then I feel like at that point, your pricing models need to change because of the risk of H2B as well. As a company. It does and it doesn't. So one of the things that we haven't really talked about is cap relief and the supplemental visas that for the last six or seven years has been steadily made available.
00:28:41
Speaker
Right. So it is true that the program is capped at
Cap Relief and Advocacy Efforts
00:28:46
Speaker
66,000. That's the baseline amount. But. That number has been hit pretty consistently over the over the last decade, right? Where program usage has exceeded the available supply, in some cases, several times over.
00:29:01
Speaker
I mean, you're you're talking three or four times as many people apply for the HDB program as actually get visas from that initial allotment. Which is just crazy to think. Right, and that and that speaks to the the fact that That's just the reality of the labor market today. It also speaks to the fact that Congress has not updated that since 1990.
00:29:21
Speaker
And we've changed a lot as a country since 1990. Right. Well, i we this might going backwards where you're going to say was there not a returning exemption at one point? That's a few years. That's that's how they structured the cap relief.
00:29:36
Speaker
So, OK, it's it's. It's sort of this ongoing thing where the government acknowledges that it's a problem but refuses to fix it, right? So what Congress has done, instead of a permanent fix to the cap, they've sort of done these one-off Band-Aids.
00:29:52
Speaker
So several years ago, it was a flat-out returning worker exemption, meaning if you previously had an H-2B visa, we're not going to count you against the cap. That sort of evolved into this idea of, well, it's a returning worker exemption, sort of,
00:30:08
Speaker
right we'll get We'll set a certain amount of returning worker visas that we'll allow. And then we'll set a separate allotment If you're coming from a country that we prefer.
00:30:20
Speaker
Right. So this was this was something that came out of the first Trump administration where they i think Trump and his, you know, his foreign policy folks at the time really saw this as sort of a geopolitical bargaining chip.
00:30:33
Speaker
um I'm sure you remember the migrant caravans coming up through Central America. The deal that was struck at the time was if you, Guatemala, El Salvador, Honduras, whatever, if you help us police these migrant caravans and you prevent those migrant caravans from making it to the U.S., we will reward you with more legal pathways to come here via the H2B program.
00:30:59
Speaker
So that's what started this. It sort of morphed from a pure returning worker exemption into a returning worker exemption plus a separate visa allotment for what they called at the time the Northern Triangle.
00:31:14
Speaker
Under Biden, we saw that program expand pretty dramatically. And so Biden brought on additional countries. So we saw Colombia, Ecuador, we saw a number of other countries get added to that list, and we saw the allotment go up.
00:31:30
Speaker
So there was actually more visas made available on top of what was put into the statutory cap. What would you say the number of country is that most of these visas are coming out of?
00:31:41
Speaker
Yeah. Mexico is number one by a pretty wide margin. Is there a reason for that?
00:31:48
Speaker
I think it's a combination of reasons. One, I think... Being our next door neighbor, I mean, I think Mexico just enjoys a level of privilege that, you know, if you're Guatemala or Honduras, you just don't have that kind of relationship with the U.S. We have a lot of of American citizens that have family in Mexico, and we have a lot of Americans that that have roots in Mexico.
00:32:12
Speaker
So Mexico has always enjoyed this, like, special place as far as being a labor supply country. Economics are another motivating factor because employers are on the hook. know, if you're going to participate in the program, you have to pay the cost of the workers getting here.
00:32:28
Speaker
And it's a lot cheaper to get on a bus from Monterey, Mexico, than it is to hop on a flight from Tegucigalpa, right? So historically, I think cost has been a major factor as well.
00:32:41
Speaker
And just the size of Mexico. Mexico mexico' is a huge, diverse country. They have a huge labor pool to pull from. But then also hitting hitting off of that, you know getting them to come here, paying for them to come here, um then you have to pay for their housing.
00:32:57
Speaker
You have to pay for all of their other things right while they're here as well, not just their wages. Well, you have to pay for them to get here, but once they're here, in the H-2B program, you're generally not on the hook for housing costs.
00:33:10
Speaker
Okay. So housing is is a requirement in the H-2A agricultural program, right? so Got it. If you're if you're ah a farmer and you're bringing in farm workers through the H-2A program, you have to provide free housing. That's sort of a norm in that program.
00:33:25
Speaker
That's not the case in H-2B. So in H2B, workers are generally free to sign apartment leases. They they've kind of figure it out on their own. Some employers do choose to help with that, um whether whether they're paying for it or chipping in to help subsidize it or just steering them in the right direction.
00:33:46
Speaker
Typically, employers do choose some form of assistance with housing. But that's a regulatory requirement that they pay for it. If they're only here for a short amount of time, I feel like that's going to be really hard to go into an apartment complex and get some sort of good feeling that they're going to not not pay. But it's like they put this application. It's like, how do I trust this person? It's only been here for six months. So I feel like at that point, you know, or not even that long, but I feel at that point, ah an employer has to step step in a little bit to help out.
00:34:14
Speaker
Yeah, it well and especially you can imagine, I mean, there there are H2B workers going to Martha's Vineyard. you know You can imagine how difficult it would be to find affordable housing there or
00:34:25
Speaker
high net worth area of the U.S. What we typically see is that employers do offer some form of assistance, even if it's not financial. Sometimes it's just being the guarantor of a lease.
00:34:38
Speaker
you know if If you're going to a landlord and saying, hey, I'm bringing in five to 10 workers, you know I'm willing to be the guarantor of a lease. Maybe we can work out a special deal on the length of the lease to you know maybe match the contract period.
00:34:54
Speaker
yeah there's There's a lot of ways that employers can be helpful. You can imagine just from a humanitarian standpoint, it's it can be a little intimidating to expect a worker, maybe they've never even been to the U.S., to try to negotiate with an American landlord to find affordable apartment. I mean, a lot of them just don't have the capacity to do that.
00:35:14
Speaker
Right. So on the loyalty of the program as a whole, it doesn't sound like that word really coincides with that with this at all. um I would feel like if I got 10 workers, then I would want those 10 workers over and over again. and I should be able to get them over and over again.
00:35:32
Speaker
Obviously I feel entitled at that point, but I feel like I should be able to get them over and over again without having to keep going back into this whole application process and then possibly get them and possibly not because there's first timers coming in. So there, it just doesn't feel like there is a loyalty to the program. It's just, you're still at risk no matter what, even though you have been in it for five to 10 years, possibly in getting the same people, right? Yeah.
00:35:55
Speaker
Well, yeah, and that's so that's one of the areas where the industry has pushed for reform. So historically, I mentioned that cap relief has has sort of been a fixture for a long time now, and and Congress keeps doing the one-off fixes.
00:36:13
Speaker
What's interesting is that the the fixed has either been, hey we're just going to flat out give you some additional visas to pull from, right like in the case of the Northern Triangle allotment, or we're going to make it contingent on the workers being returning. And that's great. I mean, ideal situation, if you could script it, you'd have the same workers year after year, right? Because they already they come in, they know your business, they they know the routine, they can kind of hit the ground running on day one. That's the ideal for sure.
00:36:42
Speaker
The problem with that is that that still creates problems within the program and it doesn't solve the cap issue. One concept that has been floated now that the industry has really rallied behind is the idea that let's not make the exemption at the worker level.
00:37:02
Speaker
Let's make the exemption at the employer level. So, MAS and any number of our industry allies, you know we've been lobbying for CapRelief. We're a founding member of the Seasonal Employment Alliance. SEA does great work as far as advocating for the industry.
00:37:20
Speaker
SEA has really been the champion of this certified seasonal employer concept, where if you are a repeat user of the program, if you are a long-time H2B-dependent business, you would be exempt from the cap as a business.
00:37:36
Speaker
Meaning you don't have to worry about this lottery every year because you've already demonstrated that you have a need and you would still have the flexibility to bring back your returning workers. But you as a business wouldn't have to worry about the cap consideration.
00:37:51
Speaker
And what that would do if that concept made it made it through, one, you would have a lot more stability as far as that loyalty you're talking about. you know been I've been in the business for X number of years. I deserve to have my workers. Why should I compete with the new people?
00:38:08
Speaker
But it also frees up visas for the new people, right? Yeah. no yeah if you If you have ah the the longtime program users essentially taken care of, that $66,000 allotment goes a lot further with people that are just getting into the program that aren't eligible for that returning seasonal employer exemption. 100%. Yeah. Is there a – I would assume – The what a spring cutoff is that more used one.
00:38:37
Speaker
So is there a benefit to your season being March 1st? Because that puts you before your April 1st start time. Obviously, you need to be able to prove that that's when your seasonality starts. Realistically, I would say that most people using the program legitimately have a March start date.
00:38:52
Speaker
It's just that they have to artificially make it April 1st because of the cap. So in the old days, I say old days, meaning seven, eight years ago.
00:39:05
Speaker
Seven, eight years ago, you could generally kind of get to a late February, maybe even early March start date. And there would still be visas from that first half allotment. You know, there's only so many ski resorts out there, right? Because you're having workers over the winter.
00:39:20
Speaker
So it was generally possible that there would still be some visas left over from that first half, and you could get a start date late February, early March, when most people start ramping up for the season.
00:39:32
Speaker
In the last five years, that's really become really difficult. And we we start to see that the visas would get exhausted earlier and earlier every year to now. I don't know. i I tend to think if you're not requesting workers in October, you have a very low probability of getting through.
00:39:50
Speaker
You know, it it tends to be an October cutoff or or bust. Maybe you can get away with maybe the first week in November if demand is low. um But as the spring, you know, visas have been under pressure, it's also spilled over and some of that pressure is falling into the winter allotment.
00:40:09
Speaker
Okay. So in terms of application and things like that, what would you warn? companies from doing like what have you seen companies do wrong that has gotten them in trouble they cut some corners here they did some probably the number one thing that that's a don't do in the htv program is don't lie about your labor need right okay and This is something that, you know, you submit this paperwork to the government, you're doing it under penalty of perjury.
00:40:42
Speaker
And if you misrepresent your labor need, it is fraud. They will put you in jail for that, right? So you just need to be very careful about being true and accurate in anything you put in that application, right? So you want to always rep, you always want to you know, be true and honest about when you need workers and how many workers you need and what you're going to have them doing.
00:41:06
Speaker
Because if you have workers that are working outside of what you said they'd be doing, that can be a form of fraud. um I think the the the the real danger is as employers get desperate, they start looking for ways to cut corners, right? Because if if you're playing a lottery, I get it. You're playing a lottery with your business.
00:41:28
Speaker
you You have revenue on the line. You don't want to lose that. You start looking for ways, well, maybe we can swap visas. Maybe, well, maybe you have some extra capacity on your contract. We'll move the workers over to me. I'll borrow them.
00:41:41
Speaker
That's when it gets really dangerous, right? And people have gone to jail for that. So kind of the the illegal visa swaps, visa trades, you know there's there's legitimate ways to to change employers on an H2B visa and to move around as needed. But then there are plenty of illegitimate ways to do it as well.
00:42:00
Speaker
And you just need to make sure that, you know, you talk to a professional to understand if what you're doing is above board. What's the vetting process on the employee? So I have my visas.
00:42:11
Speaker
I'm now ready to hire people. Can I just hire anyone in these countries? Are they doing background checks? Are they obviously making sure they're all good people before they come over?
00:42:22
Speaker
I don't know about good people, but no. a Yeah, the way to think about it is that as an employer, you're free to offer employment to anybody you want. provided that they meet the job requirements. So if if you have job requirements in there, you need to make sure that any foreign workers you're hiring meet those requirements. If they don't meet the requirements and you advertise the job requirement, believe it or not, the government views that as a form of discrimination against hypothetical U.S. applicants. yeah Maybe maybe if they if that experience requirement wasn't actually required, maybe the hypothetical U.S. applicant would have applied for that job.
00:43:01
Speaker
Once you make a determination that a worker is qualified, that they meet all the job requirements, you're free to offer them employment. That does not guarantee that the State Department will find them admissible and eligible for a visa.
00:43:15
Speaker
So the State Department has pretty broad latitude to vet any foreign applicant for any visa status. And if they if there's something in that worker's history that makes them inadmissible, like prior illegal presence, that can be grounds for denying them a visa.
00:43:34
Speaker
So, you know, i wouldn't I wouldn't say it's a very, it's not like a formal background check. but you'd be amazed at how much shows up in the State Department system, right? i mean, traffic tickets from 10 years ago or things like that, petty crimes can show up.
00:43:50
Speaker
And especially now under the Trump administration, I think there's a much greater focus on criminal history, even traffic citations and things like that can come up in the record, but certainly prior illegal presidents. If they've ever been in the U.S. s illegally,
00:44:07
Speaker
um One, you'd be amazed at how much the government actually knows about prior illegal presence. ah But they're looking back further and further in history to find out. yeah Under the Biden administration, I think if you if it was ancient history, they could gloss over it and say, okay, you know you you had a clean record for the last five to ten years. You're good to go.
00:44:29
Speaker
Now I'm not so sure. I think even if you were in the U.S. illegally 10, 15 years ago, that can still be a basis for denying you entry on an H-2 visa.
00:44:44
Speaker
So let's thinking back on this too now of just a liability and everything, and you're talking about priors and things like that, you get a guy that comes over here and he commits a crime or something happens or he takes off.
00:44:57
Speaker
Am I liable? Who's who's liable here? So employers don't have kind of general liability. You know, it's it's not a situation where you're acting as a guarantor for every single thing that that worker does.
00:45:11
Speaker
um You know, your obligation as an employer is to follow all the labor laws, follow all the program rules. You do have to apprise workers of their obligation to leave the U.S. after their status is up.
00:45:26
Speaker
Other than that, if ah if a worker commits a crime or they do something they shouldn't be doing, the the the employer is not liable for that. That responsibility falls directly to the worker.
00:45:37
Speaker
And there have been instances, I mean, thankfully it doesn't happen often, But there have been workers who committed crimes or or whatever, and you know they now I would say there's a really high probability that they'll get deported before there's even court proceedings. That that tends to be what happens.
00:45:55
Speaker
But you know we've we've had workers that maybe they get a DUI. under Under some of the new laws and some of the new enforcement mechanisms under this administration, it's pretty much guaranteed that they'll be subject to removal proceedings from the U.S. and sent home.
00:46:12
Speaker
and So I was, yeah, I was just thinking of what might keep owners up, you know, legally wise on that aspect of it. If I bring over guys and they don't leave, I did everything on my end. I got them a plane ticket, a bus ticket, or however, whatever means to get to their home.
00:46:29
Speaker
Does that look bad on me as the employer? Because obviously that's something you'd have to worry about, I would assume. is I mean, maybe prior to this administration, I think guys wanted to stay. I think now. I don't think employers get a black mark on their record or anything.
00:46:43
Speaker
You know, there there is a there is a duty to report. If if workers abscond, if they go AWOL, you as an employer have a duty to report that. And there can be there can be fines and penalties if you don't report it.
00:46:56
Speaker
But generally, there's no expectation that you're sort of you know, on the hook for them doing something illegal. the the The thing to keep in mind, though, is that this doesn't happen very often.
00:47:08
Speaker
it it It seems like it ought to happen more given the numbers that are involved. You would think a greater number would actually be out there committing crimes or overstaying and things like that.
00:47:19
Speaker
The interesting thing to me is that, by and large, if they're in the program, these are workers who want to do it the legal way. right they're They're intentionally making a choice of saying, i am choosing not to do it the illegal way. I'm choosing not to to do things that are yeah crossing the Rio Grande or whatever, paying human traffickers, however you get into the U.S. illegally.
00:47:45
Speaker
I'm choosing not to do it that way. I'm choosing to do it the legal way. And actually, i as a worker benefit from that. right I do have an elevated wage. I have much greater earning potential. I have much greater protections, legal protections as ah as a worker.
00:48:00
Speaker
So i think i'm I think workers are very much incentivized to play by the rules because it's a good gig. i mean, if you think about what workers are making doing the same job in Mexico or Honduras or Guatemala, five U.S. dollars a day,
00:48:19
Speaker
equivalent. I mean, compared to they might be making 15, 16, 17, 19 an hour doing that same job in the us on an contract. so as a worker I mean, the number one thing that they want is to be invited back.
00:48:36
Speaker
And anything that can jeopardize their ability to come back, I think, is something that they generally want to avoid. And it's it's it's to the point where when employers legally obtain an extension on the contract and they say, hey we need an extra two weeks or whatever to finish our work, and you get a formal government approval,
00:48:58
Speaker
I'm amazed by how many workers are skeptical of that. And they say, well, my document says this end date. I have to be out by that time. And is there hard to approval? There's a hard stamp date on their documents.
00:49:10
Speaker
Yeah, they they have what's called an I-94 and it's an arrival departure record. And it basically it can go to the U.S. Customs and Border Protection website. You can pull it up and it says when they were admitted to the U.S. and how long they're authorized to stay in the U.S.
00:49:28
Speaker
So they get here, you get lucky, you have an April start date. Can they go home and come back? They can, yeah. Yeah, H2B is what's known as a multi-entry visa.
00:49:42
Speaker
So it's not a situation where they have to get a new visa every time they come in. So we frequently, we have we have workers that go home for a home visit, whether maybe they go home for a wedding or they go home for the birth of a child or just for any any number of reasons, vacation even.
00:49:59
Speaker
They're perfectly allowed to do that. Probably the only restriction that I would say they need to be mindful of is that they can't be absent for too long. Right.
00:50:10
Speaker
If they're gone for more than about 30 days, CBP has the ability to reject them and force them to go back and get a new visa from from the consulate. OK, but if they had to get home for some reason, ah a birth, like you said, a death in the family, something like that, they are able to be home for that.
00:50:26
Speaker
Yeah, and in in that situation, we typically recommend that they carry a letter with them, especially if they're going home via you know car or bus or something like that.
00:50:37
Speaker
Carry a letter from the employer saying, hey, I'm giving them permission to leave. They're going to be gone for a week or whatever it is. I expect them to be back on X date. That's just a good practice because God forbid they get pulled over by law enforcement or, or immigration. It's helpful to be able to say like, Nope, I'm, I'm here legally. I'm on my way back. I'm going home for a wedding.
00:50:59
Speaker
I have my employer's permission. I'm not absconding. I'm not going AWOL. You know, that's, that's always helpful. Okay. That makes sense. So Tom, for the future of, ah of HGB, what needs to change? Do you think?
The Need for H-2B Reform
00:51:13
Speaker
the The cap is the number one thing that needs to change because the cap, first of all, the the idea of the cap, it's it's actually interesting when you look back at the history of it.
00:51:24
Speaker
The cap was created almost as a compromise, you because there was opposition to things like H-1B. You know, even back then there was opposition to it. There still is today. so So those political issues have not been resolved in the 30 years, 30 plus years.
00:51:40
Speaker
But, you the idea was at the time, if you look back at where the H-2B program was in 1990, it was kind of a backwater visa program. nobody even knew what it was. Very few people were coming in on H2B visas.
00:51:55
Speaker
So when Congress created the cap and said, well, we'll stick a 66,000 limit on it. That was actually like, they considered that an absurd number. Yeah. They considered it like, Oh, well we'll never hit 66,000. Yeah.
00:52:10
Speaker
Fast forward 10, 20 years and suddenly 66,000 is woefully inadequate. Right. And unfortunately it H2B occupies this very weird space in American politics because the extreme left and the extreme right hate the program for very different reasons and none of them understand it.
00:52:33
Speaker
And so you have this this strange bedfellows class of sort of more thoughtful members of Congress who do understand it and who do, you know maybe they maybe they're in states that are heavily dependent on H2B, like Maine.
00:52:49
Speaker
this seafood industry, it's hugely dependent on H2B.
00:52:54
Speaker
It's amazing how those... You know, you have those people from different sides of the political spectrum coming together to say, this is a problem that needs to be fixed because this has major economic consequences.
00:53:07
Speaker
And what's always been interesting to me is even as the Trump administration takes a very hardline, aggressive stance mass deportations and we got to shut down the border and we got we gotta to block all this and, you know, let's end humanitarian visa programs.
00:53:24
Speaker
Very aggressive stance on all immigration issues. There still seems to be a soft spot for the H2 visas, H2A and H2B. I think not only because the president uses the programs. I mean, there are H2B workers at Mar-a-Lago. There's H2B workers at Trump National Golf Course.
00:53:43
Speaker
it it It's important to the economy. And all these businesses depend on it. And it actually is sort of a relief mechanism if you are going to have mass deportations.
00:53:56
Speaker
So if you if you disrupt the economy and you get rid of a huge number of workers who are here illegally, somebody has to do the work. And if you don't have American workers, it's not that American workers don't want the jobs. It's that there's not enough Americans in some of these areas. I mean, a lot of H2B employers are located in very remote areas where the labor pool just can't support it.
00:54:21
Speaker
So I think if you understand the economic consequences, you would say, man, this cap is a real problem and we need long term fix. It's not just about you know where to where to put the cap number. It's, you know, how do we have enough visas to go around to meet the demand?
00:54:39
Speaker
and to allow returning employers who have depended on it to continue getting priority while still allowing new program participants to enter the program if they need workers.
00:54:50
Speaker
That's the challenge. So owners need to be out here advocating for more. hundred percent 100%. If you're in a labor-intensive industry, whether you use the H2B program or not, chances are you're going to use it eventually.
00:55:04
Speaker
What I would say is you should be you should be contacting your members of Congress and pushing for a solution to the cap problem. I got a good one for you now i just thought about that. So Nate is a company, they travel all over the country.
00:55:18
Speaker
How does that work with the program in terms of Department of Labor for the wages? So Nate could be in Alabama today and New Jersey tomorrow doing a job. Yeah, I mean, you you do have to obtain a prevailing wage for each location.
00:55:33
Speaker
um So they're union at the end of the day then. Well, if you're if you're if you're unionized and you're part of a collective bargaining agreement, that collective bargaining wage will govern.
00:55:44
Speaker
Right, but I'm saying we're not union, but from what you're saying then is if we have to – if that wage has to prevail in different areas, then you're ultimately just like a union. To an extent. I mean, it's still a mandated wage rate. you're As an employer, you're still not having the full autonomy to set the wage where you need it to be. You're paying what the government tells you to pay.
00:56:04
Speaker
Yeah. So you have to figure out wherever you would work that would be the most expensive, and basically that's where you're paying all year. Okay. Yeah. I got you now. Yeah. So it's, it's it's again, it's about it's about paying a wage rate that the government feels is appropriate for people yeah A U.S. s worker, basically? It's basically trying to protect the wages and working conditions of American workers is fundamentally what it comes down to.
00:56:29
Speaker
and I think it just goes back to what you said and how companies and government just don't understand it. you know I think a lot of people in our industry just don't understand it. we H2B is becoming more of a thing in our industry. I feel like over the past, like what, Kyle, three years or so, it's really yeah starting to take off more and more. As the labor market's gotten harder and harder. since Harder and harder, yeah.
00:56:50
Speaker
Yeah. And I feel like it's starting to take off, but nobody really understand it. Everybody wants to dip their toe into it, but nobody wants to jump jump into it. A few people have jumped into it in this industry and finally have explained it a little bit, but then it scares them away when you talk about this lottery process or you have to provide housing for them or, you know, it's just like, it makes it, it makes it so unpredictable for the future. So like at that point, I'm like, ah to me, are you optimistic for the future about this future of this program and how this looks?
00:57:20
Speaker
Optimistic in the sense that the program has become important enough to get into the national conversation. Right.
00:57:30
Speaker
And that means that something is going to give eventually. Right. Because if if it's a backwater program and it has no, you know, if, if, if there's not that many people using it and generally it's, it's,
00:57:45
Speaker
yeah a subset of businesses that don't represent a huge economic impact, you're not going to get Congress to do much of anything. The more the economy relies on it, it starts to get attention and you start to see solutions creep in.
00:58:02
Speaker
And so I'm more optimistic now about long-term prospects for cap relief and cap reform than I have been at any, I've been at Moss Labor for 10 years.
H-2B's Role During COVID-19
00:58:14
Speaker
um um I feel better about it now than I did five, ten years ago. Really? i think i i would have thought that have been I would have thought they had been opposite.
00:58:25
Speaker
Well, you would think that, right? I mean, it it it probably scares a lot of folks to look at someone like Donald Trump that has a very aggressive immigration enforcement to say this is going to be the end of the H2B program.
00:58:38
Speaker
Very easy to say that until you realize that all the arguments are in favor of not restricting H2B, but expanding it I also think you need to look at if H2B disappeared to tomorrow, what would actually happen to this country?
00:58:53
Speaker
I think that, you know, going back to you talking about the fish markets that didn't even think about up north, like that's crazy to think about. where you said ski only so many ski resorts. You don't think that those are running off of H2B workers. but i mean what' your yourself Golf courses and country clubs. i mean I mean, that's huge. So it's just like what happens to this country when all this – if this disappeared tomorrow?
00:59:16
Speaker
Well, it what what's telling to me, and and this is where everybody kind of showed their hand, was during COVID, right? Because during COVID, famously, the president shut down the border.
00:59:28
Speaker
We're going to have nobody coming in across the border, right? And we're going to have travel restrictions, and we're going to have this, that, and the other thing to limit the number of people coming into the United States. Basically, the next day,
00:59:40
Speaker
We get, you know, an official determination from the State Department and from Homeland Security that says, well, we're going to restrict everyone from coming into the country unless you're an essential worker. Right.
00:59:52
Speaker
And H2 workers are essential workers. And so we need them here. And also, we're going to create some special flexibilities and leeway if you're in the meatpacking industry, right? Or you're in certain certain industries that are essential for the functioning of the U.S. economy. We're gonna we're going to give you some special flexibilities. To to me, that tips their hand.
01:00:13
Speaker
Because fundamentally, they know how important it is to the American economy. Maybe we don't all like to admit it at times for political reasons, but the reality is that the program is essential for the economy to function. You know, I went on vacation to Jackson Hole, Wyoming, right?
01:00:31
Speaker
You want to talk about a favorite place in the country? You want to talk about a a town that runs on H2B? Look no further than Jackson Hole. Because That's a very wealthy area. You have a lot of billionaires and you know Kanye West has a house out there.
01:00:48
Speaker
There is not a sufficient local population that can keep all those hospitality establishments up and running. Well, and i would assume the workers couldn't afford to live there. Of course not. Correct. right They're priced out of the area. so i drive around I'm priced out of the area. I drive around Jackson, Wyoming.
01:01:05
Speaker
And every every other, oh, there's a client, there's a client, there's a client. You do the same thing in any resort town in America, whether it's Bozeman or West Yellowstone or Vail.
01:01:17
Speaker
Any of those towns really rely on the HDB program. And that's that's to say nothing of Alaskan seafood, Maine seafood, Louisiana seafood. ah You mentioned golf courses.
01:01:29
Speaker
Every country club in America is is facing you know some constraints on labor. So that's a huge program demographic as well. yeah people People don't really understand how deep the HGB program goes as far as sort of these essential jobs that that keep things moving.
Advice for New Employers
01:01:47
Speaker
And I feel like then if this doesn't continue on and people don't get enough of what they need, that's when the illegal activity starts is, you know, people start to bring people on and and then find out that they're illegal when you could have just gone through the process. So if they give us more, it's it's more legal people to be able to put on your workforce, you know, and and do bigger, different jobs. Yeah.
01:02:11
Speaker
What do you think, just to wrap up here a little bit, Tom, um what do you think the best advice for a first-time H2B employer would be? Go in with realistic expectations about what you want to accomplish, right? Because ultimately, you're you're looking to solve a labor need, and you're looking to solve it in a way that is inherently imperfect, right? The H2B program is not perfect.
01:02:36
Speaker
And it's not perfect because there's a lot of burdensome regulatory requirements. There's a lot of hoops that you have to jump through that you wouldn't ordinarily have to jump through as an employer. And then you have the cap, which means it's uncertain if or when you will actually get your workers.
01:02:54
Speaker
You sort of have to just be mentally prepared for that. And what I would say is Over time, you get to a point where you can make it work. Thousands of employers make it work for their businesses, right? Even with the uncertainty.
01:03:09
Speaker
I think with with people that are not seasoned pros of the H2B program, they're sort of just getting started. It's very hard to to swallow that pill, right? and it's easy to get frustrated and it's easy to sort of throw your hands up and and give up.
01:03:27
Speaker
What I tend to find is that the people that get into the program, let's say year one, they have a bad lottery result. And then year two, they say, I'm out. This was a waste of time. Year three rolls around, they're right back at it.
01:03:41
Speaker
And so don't get frustrated. Just accept that things are tricky. the The overwhelming probability with cap relief is that you will get your workers at some point or you'll get some subset of them.
01:03:54
Speaker
It's just a matter of when. And so there are some viable strategies to mitigate it. it's not It's not a lottery where it's all or nothing and that's the end of the story. you know There are strategies to mitigate it, whether it's you know trying to pursue ah winter strategy for you know kind of the tail end and then you have a cap exemption through that mechanism.
01:04:14
Speaker
You can transfer workers who are here already on HGP visas. Those don't count against the cap. And then there's cap relief, which every year has has come in some form or another that has expanded the availability of visas.
01:04:29
Speaker
So just being mentally prepared and understanding that it may not be perfect, but if you stick with it, you you can make it work for your business. So what I'm getting is educate yourselves and plan early are the main factors. And use professionals.
01:04:46
Speaker
And use professionals like yourself. That's what I'm saying. I cannot imagine being an employer trying to navigate this on your own. Man, and and as the labor pool, like we've hit hit over this podcast, it's it's become smaller and smaller. you know This stuff decides whether events happen or not for us, you know whether or not we can finish our jobs. We hit our quotas, what we need to hit and what we need to do. So you know I really appreciate you coming on today and just kind of cutting through that bullshit, you know just getting straight to the point on it and and just telling us everything we need to hear. Because I feel like, like I said, over the past three years, it's become more of a thing in our industry. and
01:05:23
Speaker
the labor isn't going to get better. I don't know why we're trying to make it better with education and everything else and trying to bring more people in. But in the meantime, at least, you know, the H2B program, we need to keep around. There is a place for it. It needs to be here. People need to advocate for it and be educated on it. Um, so, you know, I really appreciate this and I'd love to get you back on later on and, and kind of see where we're at with this. so Yeah. So we'll we'll get some listeners questions. I'm here. I, yeah,
01:05:50
Speaker
Feel free to load me up with any questions you want. I'm i'm happy to talk through. Well, Tom, if you could kind of give us, ah give the listeners to an idea of where they can reach you or reach out to you if they have any questions or, or Moss Labor in case, ah you know, they need to go through this process with you.
01:06:06
Speaker
Yeah. I mean, you can find us on mosslabor.com, M-A-S-L-A-B-O-R. um And we'd be happy to talk to you about H2B or any other labor needs you have. So visit our website, give us a call.
01:06:19
Speaker
We're happy to chat. Perfect. Well, thank you, Tom. Thanks for coming on today and and giving us a little insight on that. And this has been another episode of Under the Vinyl, a rental management media podcast.
01:06:31
Speaker
Have a good day, buddy.