WASHINGTON, D.C. – Though Oregon’s timber counties have among the highest unemployment rates in the Northwest, a recent report from the Department of Labor’s Inspector General revealed that millions of dollars in stimulus funds were used by contractors employing foreign workers to perform forest thinning work. Today, Oregon’s Senator Jeff Merkley sent a letter to Secretary of Labor Hilda Solis and Office of Management and Budget Director Jack Lew proposing changes to the H-2B foreign worker visa program that would help prevent similar incidents in the future.
In the letter, Senator Merkley called the use of funds “extremely disconcerting” and added, “The forestry work in question was completed in counties that have some of the highest unemployment rates in the Northwest. These areas include communities with a deep history of work in the timber economy and with a labor force highly qualified for this type of work. During the worst recession in generations, and within areas that have been hit harder by unemployment and underemployment than many other places in the country, it is simply not believable that there were not Oregonians ready and willing to do these jobs.”
The H-2B visa program allows employers to hire foreign workers if they can establish that no Americans are qualified or available for the work. However, the rules do not necessarily require that companies advertise open positions in the states where the work actually occurs. In this case, no Oregonians applied for the jobs because the employers only advertised the positions in California, Washington, and Wyoming.
Merkley’s proposed changes would bring more accountability to the process by requiring that the Director of each State Workforce Agency approve of each H-2B application and attest that the employer has complied with all program rules. Currently, all H-2B applications are certified by the Department of Labor out of its national processing office in Chicago. This structural change would ensure that State Workforce Agencies, who have extensive knowledge of local labor markets and regional industries, have a formal role in approving of all H-2B applications.
In addition, Senator Merkley proposed that the Department of Labor and the Office of Management and Budget reform the H-2B program by enhancing the requirements for domestic recruitment. The changes would expand the recruitment strategies of hiring firms to ensure that job listings were advertised in appropriate local venues, such as job fairs and reputable internet listings and radio stations, and would require the SWA to affirm that the employer had complied with all requirements and that it was reasonable to believe no qualified candidates were available locally.
The full text of the letter follows below.
December 1, 2011
The Honorable Hilda L. Solis
U.S. Department of Labor
200 Constitution Ave., NW
Washington, DC 20210
The Honorable Jacob Lew
Director, Office of Management and Budget
725 17th Street, NW
Washington, DC 20503
Dear Secretary Solis and Director Lew:
I write to you with significant concern about the certification process for the H-2B Temporary Non-Agricultural Work program. As you may know, I worked with a bipartisan group of my colleagues to include funds for forest thinning and wildfire prevention within the American Recovery and Reinvestment Act of 2009 (Recovery Act). The unequivocal intent of Congress was to use the funds in the Recovery Act to put Americans immediately to work while reducing the risk of catastrophic wildfire and improving forest health.
Thus, it is extremely disconcerting that, as documented most recently in the Department of Labor’s Office of Inspector General report from October 17, 2011 (Number 17-12-001-03-321), millions of dollars in Recovery Act funding were used to pay contractors who employed hundreds of foreign nationals through the H-2B program.
The forestry work in question was completed in counties that have some of the highest unemployment rates in the Northwest. These areas include communities with a deep history of work in the timber economy and with a labor force highly qualified for this type of work. During the worst recession in generations, and within areas that have been hit harder by unemployment and underemployment than many other places in the country, it is simply not believable that there were not Oregonians ready and willing to do these jobs.
As the Inspector General’s report indicates, Oregonians were not aware that these jobs were available, because the companies who were awarded the contracts for the work in Oregon never advertised the jobs in Oregon. The integrity of the H-2B program relies on the Department of Labor’s certification that there are no Americans qualified and available for the positions an employer is seeking to fill. Millions of unemployed Americans are not well served by the H-2B program’s current management structure, rules, and recruitment requirements for participating employers, and changes should be made immediately.
The proposed rule for reforming the management of the H-2B program (RIN 1205-AB58), currently under review at the Office of Management and Budget (OMB), would improve upon the current recruitment activities and responsibilities required of both employers and the State Workforce Agencies (SWA). Specifically, the proposed rule would require that the employer submit a job order directly to the SWA for approval of the contents of the job order, and provide the SWA with oversight over the job referral process. These proposed changes make sense. The changes would better utilize these organizations, whose primary mission is to help unemployed Americans find jobs. However, the proposed rule needs to go a step further.
Most importantly, the Director of the SWA should approve of each H-2B application, attest that the employer has complied with all requirements, and determine that it is reasonable to believe the appropriate candidates cannot be found locally. Moreover, any finalized rule should include enhanced recruitment strategies of all employers such as a visit to a job-fair or a non-profit that assists unemployed Americans, advertisement on commonly used and reputable Internet job-search sites and local radio stations, and other strategies that the SWA may recommend. As you know, SWA’s have extensive knowledge of local labor markets and regional industries, and requiring SWA’s to directly manage and approve of H-2B applications would help restore confidence in the H-2B program and reassure American workers that federal law is being followed.
Without a doubt, many employers who participate in the H-2B program do so only after diligently following program rules and out of a pressing need for temporary employees unavailable in the local labor market. However, every effort should be made to fill open positions with Americans from the local community. Oregonians were wronged when Recovery Act funds were used by the Forest Service to hire contractors employing foreign nationals through the H-2B program. It is imperative that reforms are quickly implemented to ensure that all workers, American and foreign, are well-served by federal immigration policy.
I appreciate your continued commitment to improving the H-2B program and I look forward to receiving your response to the concerns raised in this letter.
Jeffrey A. Merkley
United States Senator