Small Business Administration Roundtable Meeting on
DOL’s H

- 2B Visa Proposed Rule

On April 26, 2011, the Small Business Administration’s (SBA) Office of Advocacy hosted a roundtable to allow the Department of Labor ( the Department or DOL) to provide a briefing on the contents of the H

- 2B Notice of Proposed Rulemaking (NPRM) followed by a roundtable discussion. The agenda for the roundtable and the list of

attendees are attached to the end of the notes memorializing t he discussion from the
roundtable. The attendees included small business owners, representatives fr om various industry associations and councils potentially impacted by the NPRM , immigration lawyers, agents for employers, a representative from the Chamber of Commerce, and staff from SBA, DOL and the Department of Homeland Security.

Winslow Sargeant, the Chief Counsel for the SBA ’s Office of Advocacy opened the meeting.

Dr. William Carlson , the Administrator for the Employment and Training
Administration’s (ETA) Office of Foreign Labor Certification at DOL, provided an overview of the proposed changes in the published NPRM.

Dr, Carlson’s presentation was followed by an open comment period. The general topics addressed during the open comment period at the beginning and end of the roundtable are
summarized below:

 An agent for employers asked about the timing of the rule, e.g., when it would be

pu blished and when it would be effective

. He also asked about DOL staffing for the

transition and whether DOL coul d timely process applications.

 Another agent noted concerns with t he new adjudicatory provisions in light of recent cuts in the ETA budget.

 A number of small business owners, industry representatives and agents believed that the perceived complexity of the regulations would guarantee noncompliance.

The se attendees claimed that cumulative effect of housing, transportation, 3

- day rule,

and the 2011 Prevailing Wage Final Rule would be overly burdensome

.

 A representative of a n employer association thought that the new definition of full
time would be overly burdensome , particularly when combined with the 3⁄4
guarantee.

 There was general acceptance by attendees of the 9

- month period for the term of
work.

 An employer representative asked about the definition of “are a of substantial unemployment” and recommend that the determination be made during a comparable peak period

, i.e., the same work period as in a previous year, not a different season in the same year.

 A n attendee was concerned about the “o pen

- ended nature ” of a dditional recruitment requirements

. An attendee expressed concern over whether this was an attempt to weed out certain

H

- 2B employers.

Discussion during the roundtable then moved to “How the Rule May Impact Small Business.” The following is a summary of comments and questions raised during this phase of the roundtable:

 A n employer representative indicated that reforestation employers would turn to
undocumented workers or leave the program if it became too expensive to hire H

- 2B
workers.

 A reforestati on employer indicated that the program worked more successfully when there was a more active role played by the SWAs in the process, as the SWAs were staffed by local experts who knew the local areas and labor markets.

 An employer association representat i ve and an employer expressed c oncern that the proposed rule would adversely affect small businesses

, and the representative asked if the Department knew how many employer applicants are small businesses; t he Department indicated that it did not have that i nformation, but welcomed any data

from attendees

.

 A landscape employer indicated that many of their H

- 2B workers returned every

year , and that it was impossible to find U.S. workers willing to do this type of work who did not have problems with either drug tests or criminal records.

 An employer voiced concern about the number of undocumented workers in the labor pool and the impact of the now

- mandatory e

- verify system. He felt that

b usinesses will be very encumbered by these rules.

 An employer was concern ed that a national job registry could be abused by unemployed workers looking for free trips across country.

 Another attendee believed the recordkeeping for employer applicants would be much

worse if the process were nationalized

.

 Several attendees offere d comment s on the interplay of several proposed provisions, such as the national job registry, requirement to hire U.S. workers, and requirement to pay for the transportation of remotely hired U.S. workers

. They were concerned

about the cost to employers a nd their ability to recruit and retain an adequate number

of workers

 An employer agent voiced concern about the perceived lack of distinction between significant violations and recordkeeping infractions by the W age and H our D ivis i on

.

 Several attendees expr essed concern about the 3 day rule. An employer agent recommended that the 50 percent rule used in H

- 2A be applied in place of the proposed 3 day rule ; a n employer representative voiced concern about the potential for lawsuits by U.S. workers who are not offered jobs filled by H

- 2B workers ; an attendee suggested that it can be much more expensive to book tickets with only three days’ notice; and an employer argued that h otel s need workers in place a month before the guests arrive in large numbers to ensure that workers a re well

- trained

, making the 3 day rule unworkable in that industry

.

 Several employers addressed the issue of housing costs

. They indicated that they often had to secure long

- term leases for H

- 2B workers

, and stated that they would

bear the cost for unused housing if U.S. workers were hired. Numerous attendees discussed the corresponding employment provision: a n attendee

asked if DOL would consider using the H

- 1B definition for corresponding employment ; a n attendee was concerned that , due to overlapping job duties, employers would be required to give year

- round, full

- time employees the same benefits guaranteed H

- 2B workers ; and a n attendee stated that the corresponding employment provision will complicate WHD investigations

. Other e mployer ag ents were concerned that no one knew the ramifications of the proposed corresponding worker provisions in the NPRM.

 A n attendee was concerned about a perceived lack of flexibility in the proposed 3⁄4 guarantee and recommended that it be modified to model the H

- 2A 3⁄4 guarantee (based on the term of the contract rather than a 4

- week period) ; other attendees recommended that the 3⁄4 guarantee be modified by an “act of god” exception.Small Business Roundtable Meeting on DOL’s H

- 2B Visa Proposed Rule

Agen da

I. Welcome and Introductions (2:00 p.m.

– 2:10 p.m.) Winslow Sargeant, Chief Counsel, SBA Office of Advocacy

II. An Overview of DOL’s Proposed Rule on the H

- 2B Visa (2:10 p.m.

– 2:30 p.m.) Speaker: Dr. William Carlson, Admini strator for the Employment and Training Administration’s Office of Foreign Labor Certification, DOL Other DOL representatives are also expected to attend the roundtable.

III. Questions & Answers for DOL Representatives (2:30 p.m.

- 2:50 p.m.)
Since the re is an open comment period, DOL representatives will only be able to respond to questions regarding clarifications to the proposed rule.

IV. How the Rule May Impact Small Businesses

- Roundtable Discussion (2:50

p.m.

– 4:00 p.m.) Advocacy is looking for information regarding the possible impact of this rule on these small businesses and any possible regulatory alternatives or clarifications that may
minimize the cost or the burden of this rule on small businesses.

Expected topics (submitted by small business representatives): (5

- 10 minutes each)

- New recruitment process (jobs must be offered to U.S. workers up to 3 days before H

- 2B workers are scheduled to work)

- Corresponding employment provisions

- Revised definitions of temporary and full

- time

- 3/4 guarantee

- Housing, transportation and related costs

- Process issues related to the new registration and labor certification

processes Please e

- mail me if you have another agenda topic you would like added
to the list. We are covering a lot of topics, so please be brief with your remarks.

At the request of several participants, the Roundtable meetings are closed to the press in order to facilitate open and frank discussion.H

- 2B Roundtable Attendees

- April 26, 2011, 2

- 4pm

Name Organizat ion

Jay Owen Sposato Landscape

Tony Sposato Sposato Landscape
Tom Delaney Planet
Laurie Flanagan DCLRS
Arnulfo Hinojosa FEWA
Wesley Mathis FEWA
Randy Randol LA Crawfish Processors

Richard Lewis Forest Resources Assn.

Dan Bremer AgWorks, Inc.

Mic helle Reinke National Restaurant Assoc.

Dave Fulton Maslabor
Libby Whitley Maslabor

Bill Carlson DOL
Janis Reyes SBA Office of Advocacy
Tamar Jacoby Immigration Works
Craig Brightop Nat'l Roofing Contractors Assoc.

Charles Maresca SBA Office of Advo cacy

Sean Thurman Assoc Builders and Contactors

Brooke Frankenfield Assoc Builders and Contactors

Amy Mae U.S. Chamber of Commerce

Christian Sain The Country Club of VA Golf Course Support Assoc. of America

Scott Kinnan Farmington Country Club Golf

Co urse Support Assoc. of America

Randall Pence Interlocking Concrete Pavement

Institute

Fernando Sáenz Workforce Advantage
Russell Riggs National Assoc. of Realtors
Madeleine Sumption Migration Policy Institute
Chris Conboy DOL
Paul Treacy DOL
Stephan ie Swirsky DOL
Harry Sheinfield DOL

Sheila McConnell DOL

Babette Williams DOL
Jay Hickey American Horse Council

Betsy Lawrence AILA
Ben Pendergrass American Horse Council

Rebecca Schechter Greenberg Traurig

Eric Reller American Hotel and Lodging As sn.Phyllis Bell U.S. Dept of Homeland Security

Aliah Harding U.S. Dept of Homeland Security

Hadley Sosnoff American Nursery and Landscape

Assn.
Carolyn Osolinik Mayer Brown LLF