Lawn & Landscape White Paper: Managing Immigrant Labor - H2B & JEVP

Legally employing immigrants is possible, and the federal government is even willing to help companies do so. In recent years, the government has developed two programs through which contractors can obtain immigrant employees that are known to carry the necessary paperwork to legally work in this country.

The H2B and Joint Employment Verification Program are federal programs that verify immigrants’ legal status as employees before they enter the country or before they begin employment, respectively.

Pat Walters, director of investigations for the U.S. Immigration & Naturalization Service in Charlotte, N.C., explained that the H2B program is a classification of immigrants that gives these individuals temporary authorization to work or receive training in the United States. The work to be done cannot be agricultural work (those immigrants are classified H2A) and the work has to be temporary or of a seasonal nature.

According to a nationwide survey conducted by Lawn & Landscape magazine, 11.2 percent of the industry currently participates in the H2B program. Participation was highest in the South at 18.0 percent, followed by 8.9 percent in the Northeast, 7.2 percent in the Midwest and 7.1 percent in the West. While some companies credit their ability to grow to the H2B program, others remain openly critical of the bureaucratic challenges applying for employees presents.

H2B employees come into the country only after a company files a petition with its local INS office to receive H2B employees. Such a petition can only be approved if the petitioning company demonstrates that it cannot hire U.S. citizens to fill its vacancies.

"We were required to place a help wanted ad in the local newspaper for three consecutive days and show an insufficient response to the ads before we could apply for H2B workers," noted Pete Haran, vice president, Lipinski Landscape Contractors, Mount Laurel, N.J. Other contractors reported similar pre-application requirements.

According to contractors who have employed immigrant labor through the H2B program, once the INS approves the company’s application for the work visas, the company generally needs to enlist the services of a recruiter to bring the employees to the United States. The employer also agrees to pay these individuals’ transportation costs to and from their home.

Three companies represented at the third annual Landscape Contractor Roundtable, sponsored by Husqvarna Forest & Garden Co., Charlotte, N.C., and Lawn & Landscape magazine, used the H2B program to obtain employees in 1999.

These companies paid the recruiting firm between $200 and $1,000 per employee with one company hiring as many as 60 employees through the program. The typical wage paid to these employees ranges from $6.25 an hour to $7.05 an hour.

In addition, companies are required to find housing for their H2B employees, although the employees pay for it.

"We view the housing requirement as a positive because most Hispanic employees don’t have a driver’s license and we would have to provide them transportation to and from work," pointed out Maria Threadgill, operations manager, James River Grounds Management, Glen Allen, Va. "Now, we own housing within walking distance of our office that we rent to our H2B employees."

Other contractors hiring immigrant labor have also acquired or built housing near their office and they charge the employees rent to live in these fully furnished properties via a payroll deduction.

"There are a couple of companies providing H2B recruitment services, but contractors should check them out carefully before contracting with one because there are also some companies looking to take advantage of the situation we’re in," noted Bruce Birdsong, president, Precision Landscape, Farmers Branch, Texas.

"H2B allows for a maximum of 10 months employment before the employee has to leave the country, but we’ve had about 80 percent of our H2B employees return for employment again the next year," noted Haran.

Threadgill also reported that some of James River’s H2B employees have worked for the company for more than one year through the program since employers are allowed to request that the visas be granted to specific individuals at the time of application.

"Another problem is that companies have to continually apply for H2B workers because the employees are only granted temporary legal alien status," added Haran. "We just have to accept the fact that we will constantly be training new immigrant employees if we want to use this program."

"But this program still doesn’t solve the problem for employers who are not located in seasonal markets," pointed out David Snodgrass, president, Dennis’ 7 Dees Landscaping, Portland, Ore.

"The labor problem in the snow belt is significantly different than the problem in the southern parts of the country," agreed Ron Kujawa, president, Kujawa Enterprises, Cudahy, Wis. "As an industry, we need to get the government to understand the uniqueness of this problem for our industry and get them to react."

"We were raided by the INS in the spring of 1998, which is why we participate in the H2B program now," noted Lipinski. "But there are still problems with this program, such as the 120-day required filing time. We have to be able to anticipate our labor needs so far ahead of when we actually need the employees that anticipating the exact needs and then getting the necessary state and federal approval in time to get the employees by when you want them to work is difficult.

"In 1998, we applied to receive 75 workers on Jan. 15 and we got approval for them on Sept. 15, which was obviously too late," Haran continued. "This year, we applied for employees on Nov. 15 and received approval on March 6. From there, working with the INS to actually get the employees to our office takes an additional 30 to 60 days."

While the bureaucratic red tape and costs associated with the H2B program frustrate contractors partaking in the program, they are quick to point out that there isn’t any better alternative.

"Once you get raided, you’ll want this type of verification too because losing 30 to 50 percent of your employees on one day really hurts," Haran declared. "I hated losing employees that were good employees but were illegal immigrants, but I would also love to have a raid where we don’t lose anyone."

JEVP PROGRAM. The JEVP differs from H2B in that JEVP is still in the pilot testing phase with only a handful of companies currently participating.

The concept behind the program is that employers can submit a prospective employee’s identification number to the government via a computer system so the government can authenticate that individual’s identity and legal U.S. citizen status before the individual is hired.

"JEVP does verify that employees are legal ahead of time, but the program is voluntary and it costs us about $1.09 more per hour for an employee than our competitors pay because of the way the employees are classified by the government and because there are fewer legal employees to hire than there are illegal employees to hire," noted Joe Aurilio, human resources manager, Mariani Landscape, Lake Bluff, Ill. "And what happens if the industry finds out that there aren’t enough legal employees to hire? Any company that takes itself out of the JEVP sends a clear signal to the INS that it either thinks it has problems with some of its current employees or it wants a way to hire more employees.

"But we got involved in the program because we had thought we were doing everything correctly and we found out during a raid that about 60 percent of our employees were illegal aliens," Aurilio recalled. "It’s a real game of Russian roulette."

Aurilio explained that all of the company’s employees at the time it entered the JEVP were grandfathered in and not submitted to verification, but every potential new employee from that day forth had to be verified as a legal U.S. resident.

"And the INS can still audit us to make sure we are submitting the names of everyone who we actually hire," Aurilio added.

"This type of verification program is the last thing we would want for our business because we need the Hispanic workforce to survive," admitted another contractor. "These people are our best laborers, so we should focus our efforts on developing legislation that will allow us to have an adequate supply of a legal workforce."

"I would guess that despite our best efforts at only hiring legal employees, about 10 percent of our workforce is still illegal," related another contractor.

"One way or another, the government is going to be invasive into our businesses," asserted Aurilio. "We have to revise the current H2B program to make it more practical and effective or come up with a new program that does the job."