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 the discussion from the 

roundtable. The attendees included small business owners, representatives from 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 

published and when it would be effective. He also asked about DOL staffing for the 

transition and whether DOL could timely process applications.

 Another agent noted concerns with the 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.

These 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 an 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 “area 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.

 An attendee was concerned about the “open-ended nature” of additional 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:

 An 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 reforestation 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 representative and an employer expressed concern that the 

proposed rule would adversely affect small businesses, and the representative asked 

if the Department knew how many employer applicants are small businesses; the 

Department indicated that it did not have that information, 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 

businesses will be very encumbered by these rules.

 An employer was concerned 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 offered comments 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 and 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 Wage and Hour Division.

 Several attendees expressed 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; an 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 hotels need workers in place a month 

before the guests arrive in large numbers to ensure that workers are 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: an attendee 

asked if DOL would consider using the H-1B definition for corresponding 

employment; an 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 an attendee stated that the corresponding 

employment provision will complicate WHD investigations. Other employer agents 

were concerned that no one knew the ramifications of the proposed corresponding 

worker provisions in the NPRM.

 An 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

Agenda

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, Administrator 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 there 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 Organization 

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.

Michelle 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 Advocacy

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 

Course 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

Stephanie 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 Assn.
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