Unions challenge work visas
Employers say they need more foreign labor to fill U.S. gap
By L.M. Sixel
Igloo Products Corp. says it began using the H-2B visa program because it can't fill all its openings with local workers.
Longtime union leader Michael Cunningham didn't know much about work visas when he heard about certified letters piling up at Texas AFL-CIO headquarters.
"There was a flood of them," said Cunningham, describing two boxes he sorted through in 2006 after a change in immigration law required companies seeking foreign workers to inform local labor unions. Some companies sought a few temporary welders, roofers and other construction workers. Others wanted 100 or more. And their wage offers were $3 to $10 less per hour than what U.S. construction workers were earning.
It appeared to him that employers were bringing in foreign workers to fill jobs they said U.S. workers didn't want - except that U.S. job seekers often didn't know about them.
Cunningham started challenging the visas on various grounds, an early foray in an ongoing battle over the work permits - which companies say they must have to meet labor needs and worker advocates say can undermine U.S. wages.
Jacob Monty, an immigration lawyer with Monty & Ramirez in Houston who represents employers trying to hire foreign workers, says visa delays can be devastating to clients who expect a steady flow of foreign workers to staff their landscaping operations, construction companies and restaurants.
Twice each year, the government issues 33,000 temporary non-agricultural foreign work permits, called H-2B visas, on a first-come, first-served basis. A sudden surge of U.S. applicants or other disruptions can hang up a company's visa applications, forcing it to the back of the line."It's like getting them on crack," said Monty - comparing employers' need for the visas to an addiction that they may not be able to satisfy when unions challenge an application.
Cunningham, an insulator who had risen to lead the Texas State Building & Construction Trades Council, studied the rules and challenged many applications on simple errors like timeliness and proper job posting language, or on whether the jobs really were temporary.
He also asked union leaders to demonstrate that enough U.S. workers were available to fill the jobs. If a company wanted 100 foreign welders, union members would flood the company's fax machine with résumés.
Cunningham estimates that during the past decade the coordinated effort has kept more than 50,000 foreign construction workers from obtaining temporary visas to work in the U.S., including thousands along the Gulf Coast.
The U.S. Department of Labor grants more temporary worker visas in Texas than in any other state, and for each one an employer must prove no U.S. workers are available.
In the federal fiscal year ending Sept. 30, 2014, the Labor Department gave companies permission to hire 93,649 foreign workers, including 14,195 in Texas, according to the department's employment and training administration.
Landscaping companies are by far the biggest users of the H-2B foreign labor visa program, representing 37 percent of the total positions certified last year nationwide. The construction industry represents only about 4 percent.
In Texas, however, construction companies make up about 20 percent of the approved requests, according to 2014 data.
Monty estimates that prevailing wages - the hourly wages the government approves for foreign workers -have soared about 30 percent over the past two years, making it less attractive for employers to use foreign temporary workers.
He says rising wages affect his clients more than denial of visas under pressure from U.S. workers.
Some companies back out when they realize how much they'll have to pay, he said. Or they hire fewer foreign workers than they initially planned.
One big fight has been over the Labor Department's move in 2005 to shift the way it calculated prevailing wage rates.
Worker advocates say that instead of using federal prevailing wage surveys, the Labor Department began using a skill level classification system that, according to the department's own analysis, artificially lowered wages.
Employers categorized nearly 75 percent of their openings as entry level which, over time, lowered wages and made it less likely U.S. workers would take the jobs, according to the analysis.
The Labor Department hasn't explained why it made the change and didn't put it up for public comment - which provided a legal opening for low-wage worker advocates to successfully challenge it.
They alleged that companies and their foreign labor recruiters misrepresented occupations and skill levels to push down wages.
A federal appeals court eventually directed the Labor Department to drop its classification system, and struck down the use of employer-sponsored wage surveys, a move expected to boost wages for foreign workers this year.
Employers also must also keep their jobs posted longer and closer to the date the work is actually scheduled to begin, said Arthur Read, general counsel of Friends of Farmworkers, which has been behind many successful legal challenges aimed at preventing employers from undercutting U.S. wages by paying foreign workers less.
The landscape industry argues U.S. workers aren't typically interested in seasonal work, especially the arduous physical labor demanded in landscaping.
Even those without advanced education have less taxing indoor options such as retail, services and hospitality, said Craig Regelbrugge, senior vice president of industry advocacy and research for AmericanHort, a trade group for the horticulture industry.
"Having access to H-2B workers to fill critical seasonal needs allows companies to sustain full-time, year-round employment for supervisors, managers, salespeople, designers, etc," he said in an e-mail. "Many U.S. workers' livelihood is supported by H-2B workers."
Regelbrugge speculates that workers who can't get the visas may come to the United States without work permits and pick up work where they can - further undermining wages for citizens and authorized foreign workers.
But Bill Beardall, director of the Equal Justice Center, which represents workers on H-2B visas, said that if landscaping and other industries improved working conditions and paid higher wages, they could attract more U.S. workers.
"The reason employers want to use H-2B workers is because they can get a workforce that they can pay less and who will gladly work under adverse working conditions that are often better than what they can get at home," said Beardall, who is also a law professor at the University of Texas School of Law.
Cunningham, the state Building & Construction Trades Council leader, is 63 and plans to retire next year. He has been traveling the country teaching other labor leaders about the intricacies of the regulations, how to spot visa job postings and what to do once they find them.
Recently he was in Chicago, making a presentation to the Midwest leaders of the United Union of Roofers, Waterproofers & Allied Workers about the hundreds of requests that come through every year for roofers. During the past 15 years, the government has approved nearly 8,000 visas for foreign roofers.
"We were all so amazed that so many contractors are applying for foreign workers when we have thousands of roofers looking for work all the time," said Jordan "Gig" Ritenour, director of marketing for the international roofers' union and business manager in Texas.
Ritenour, whose office is in the Dallas suburb of Garland, said he gets calls every day from unemployed roofers in Houston and elsewhere. He was particularly struck by one request from a contractor looking for foreign roofers at $8 an hour. The union wage is $22.84 an hour, plus benefits. Even the non-union wage is about $14 an hour, he said.
Ritenour said he immediately will begin making sure that contractors know the union has trained and ready roofers to do the work, and that union members apply for the openings.
But to apply for the openings, labor leaders need to know how to spot ads seeking foreign workers. One big tipoff is that the job postings, to conform to Labor Department rules, spell out certain details like the length of each pay period and the per-hour calculation for overtime.
Igloo Products Corp. recently advertised on the Texas Workforce Commission's "Work in Texas" website for 350 temporary helper production workers. The jobs pay $11.63 per hour and require no experience. They began last week and end July 31.
This is the third year the manufacturing plant will be relying on workers from Mexico to handle its peak manufacturing season, said Marla Morales, director of human resources. To make sure its coolers are on store shelves during the spring and summer, the plant ramps up between October and March.
Igloo began using the H-2B visa program because it can't fill all its openings with local workers, said Morales. The plant on the outskirts of Katy is not close to any bus lines.
Historically, that has made it difficult to hire. At the moment, Morales said, Igloo has 107 full-time, year-around openings.
"Chances are you can walk in and walk out with a job," she said.
This year, Igloo attracted more U.S. workers with its ad. Consequently, Igloo will probably end up bringing in only 200 to 250 workers on H-2B visas, rather than the 350 it requested.
It will be a homecoming of sorts for about 90 percent of them, said Morales. Even though the company has to pay for transportation to and from Mexico and the cost of the visas, it's worth it.
"Making sure we have enough workers is key," she said.
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