05 Jan 2021 NDAA Veto Override Brings Hope of H2B Labor for Local Projects
In a rare New Years Day vote, the Senate voted to pass the 2021 National Defense Appropriations Act (NDAA) into law over presidential veto. Within this law there are provisions which bring hope to small contractors and related businesses in Guam who have been desperately searching for skilled labor to complete their projects. To understand the importance of these provisions to these businesses, it is necessary to understand the history and context of the H2B visa program as it applies in Guam.
Foreign labor is often a source of controversy in the US with criticism often related to displacement of US workers. However, Guam has been consistently reliant on foreign labor for island construction and other business needs, most notably due to the lack of available skilled workers in our finite population and the geographical distance from the United States labor pool. It is often expressed by our clients that they would jump at the chance to hire local workers because of the difficulty and expense associated with recruiting foreign labor, but workers are just not available despite best efforts to find them. As a result, we have helped our clients navigate the complex administrative hurdles associated with the H2B visa program for decades.
The H2B visa program has been particularly problematic in recent years. Aside from the typical bureaucracy and expense involved with this process, the problems began with a change by United States Citizenship and Immigration Services (USCIS) regarding how they interpreted the H2B regulations related to a petitioner’s need for foreign labor. Specifically, the petitioner’s need for the labor must be “temporary”. In the case of contractors, it was an acceptable argument for decades that a contractor’s need was temporary because it was linked to a contract that has a finite period. However, USCIS decided that this was no longer an acceptable position to establish “temporary need”. The result was an almost one hundred percent denial rate of all H2B applications that triggered devastating repercussions on the island construction industry and economy. Similar problems plagued the health care infrastructure on island which has also been supported heavily by foreign labor.
Immigration practitioners, stakeholders and local government officials fought tooth and nail against USCIS’s new interpretation of the H2B rules. A class action lawsuit was filed against USCIS based on the sudden departure the interpretation USCIS had held for decades. Although the lawsuit had limited success, it did not clear the path for use of the H2B visa program by local businesses as had been hoped for. Fortunately for Guam, the Department of Defense was also feeling the strain from the lack of foreign labor on island for their projects. Many of these projects were specifically related to the military realignment plans in the region and important to national security. With the assistance of this agency, local government officials were able to successfully lobby to include legal provisions in the 2018 National NDAA allowing health care institutions and contractors performing work on projects directly related to or associated with the military realignment to bring workers under the H2B visa program despite the problems with the new interpretation of the temporary need requirement.
Finally, Guam was able to see successful recruitment of workers through the H2B program again, but the NDAA language was still limiting. To get approvals under the NDAA provisions, projects generally needed to be direct military contracts, local shared infrastructure projects, or larger private projects that stood to serve the military realignment in a significant way. Contractors handling smaller housing projects and other work were not able to make the connection to the military realignment to justify the recruitment of foreign labor. Much of the available local labor jumped at jobs with larger contractors, and the smaller local businesses and community have continued to feel the strain on the labor pool in the form of much higher housing and construction costs.
Since the initial NDAA provisions opened the possibility of recruiting H2B workers once again, they have been modified in each subsequent years NDAAs to help better facilitate the program on Guam. However, the newest modification under 2021 NDAA includes language that broadens the options under which a project may qualify under the NDAA provisions. This opens the possibility of recruiting foreign labor for smaller contractors and related businesses that have been starved for available labor for their projects having been left out from previous years NDAAs. With any luck, new availability of foreign labor will have a positive impact on our economy at this critical time.
H2B applications involve complex multistep procedures, which require a particularly intricate understanding of immigration law. This is especially true considering the island’s unique situation and legal provisions that apply specifically to Guam. It is important to seek specialized legal assistance to navigate the complexities of this process. Our attorneys at Baumann, Kondas & Xu have years of experience serving our island businesses and are uniquely qualified to assist in these matters.
Authored by Shane F. T. Black