Court halts ban on foreign worker visas

Morgan B. Tolley, General Manager, A.E. Phillips & Son, in the area where blue crabs are picked by temporary workers from Mexico. Phillips and other businesses that are dependent on temporary workers are awaiting a court ruling expected to lift the ban on processing the workers. <a href="http://www.baltimoresun.com/news/maryland/bs-md-crab-ruling-20150318-story.html">Read the story</a>
Morgan B. Tolley, General Manager, A.E. Phillips & Son, in the area where blue crabs are picked by temporary workers from Mexico. Phillips and other businesses that are dependent on temporary workers are awaiting a court ruling expected to lift the ban on processing the workers. Read the story (Kim Hairston, Baltimore Sun)

WASHINGTON — A federal court on Wednesday allowed the U.S. Department of Labor to resume processing guest worker applications, granting a reprieve to Eastern Shore crab houses and other businesses that rely on foreigners to do jobs they say Americans won't.

The order delays a ruling from the same court earlier this month that found the department exceeded its authority in certifying employers for the so-called H2B program. That decision shut down the processing of applications and sent Maryland's seafood industry into a panic weeks before the start of the crab-picking season.


While the ruling Wednesday appeared to avert an immediate crisis, it did not resolve many of the industry's concerns. The court delayed its earlier ruling only through April 15 — buying the Obama administration and the seafood industry a month to come up with a broader solution.

"Every time there is a bureaucratic rule change or legal interpretation that harms their ability to operate their businesses, they lose another piece of their livelihood," said Sen. Barbara A. Mikulski, a Maryland Democrat who has been vocal on the issue.


The U.S. government issued 57,600 visas in 2013 to foreigners who perform seasonal jobs such as crab picking, oyster shucking and landscaping. The Labor Department certified more than 3,000 workers for Maryland last year, making the state among the largest beneficiaries in the country.

Congress has set a 66,000 annual cap on the number of positions covered by the workers.

Seafood processors and other employers say the program helps them fill jobs that Americans are reluctant to take.

Workers pay taxes on their earnings here and return home when the season is over. Many come back year after year for because the pay is better than they receive in their own countries.

"It's a huge deal," said Morgan Tolley, general manager of A. E. Phillips & Son, which began employing the workers at its Hoopers Island packing plant more than two decades ago.

"It's a government program that actually works," he said.

Critics of the program say companies could fill the jobs with American workers if they paid higher wages.

Daniel Costa, director of immigration law and policy research at the left-leaning Economic Policy Institute in Washington, says many of the industries that rely on the program, such as landscaping, have high unemployment rates in the United States.

"There isn't a big labor shortage," Costa said. "If the program is going to exist it needs to be done in a fair way so that American workers have the first shot at the job."

The court action Wednesday came in a federal lawsuit filed by a waiter in Florida who says he would have applied for jobs held by foreign workers if they had been advertised.

A District Court ruled March 4 that the Labor Department lacked the authority to certify whether U.S. workers were available to perform the jobs, and whether the presence of foreign workers would adversely affect wages of local workers in similar positions — two of the requirements of the program.

In response, the Labor Department stopped processing H2B applications.


Tolley said the delay has added uncertainty about whether the seafood plants will be able to secure enough workers for their busy season. Employers already were applying for the program when it was frozen — and many are worried that a cap imposed by Congress on the number of visas will limit their ability to fill jobs.

"We need the workers," said Harry Phillips, the owner of Russell Hall Seafood in Fishing Creek. He said the industry has been frustrated by the frequent lawsuits and rule changes for the program over the past several years.

"We've done it the right way — legally," he said. "And we're being penalized for doing it the right way."

The administration asked the court late Monday to halt its earlier ruling so the Labor Department could resume processing applications. Officials have vowed to craft new, emergency regulations that would satisfy the court's order — but not until the end of April.

Republican Rep. Andy Harris, who represents the Eastern Shore, has criticized the Labor Department for not having a plan in place to deal with the possibility of an adverse ruling the case.

"H2B visas are critical to the Maryland economy," Harris said in a statement. "The Department of Labor needlessly created this problem and now they need to work expeditiously to ensure visas continue to be issued in the months and years ahead."

Judge M. Casey Rodgers, of the Northern District of Florida, seemed to express similar misgivings in her ruling Wednesday.

"It is disingenuous to suggest that the court, rather than DOL, is somehow responsible for DOL's lack of a contingency plan," Rodgers wrote.

A spokeswoman for the department did not respond to a request for comment.


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