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6/20/2005
SPECIAL REPORT: Work visa rule changes could hurt U.S. truckers

Proposed changes in rules for temporary foreign workers could result in even more fraud and misuse by motor carriers seeking to fill their drivers' seats, according to comments OOIDA filed in response to a proposed rulemaking.

In those comments, OOIDA officials ask the U.S. departments of Homeland Security and Labor to stick with the current certification process instead of switching to a weaker verification process that would have fewer checks and balances.

Changing the procedures for approving H-2B visas for temporary foreign workers could have a significant impact on the day-to-day operations of OOIDA's members. The H-2B visas are for aliens who come to the Unites States to perform temporary nonagricultural labor or services. There are 66,000 H-2B visas allowed each year, and the workers are subject to U.S. labor laws.

"The job prospects of (our) member truckers are adversely affected when motor carriers employ foreign workers . When foreign drivers accept lower wages or poor working conditions, it is more difficult for our member drivers to insist upon better pay or improved working conditions," OOIDA said in its comments.

Homeland Security and Labor department officials said in their proposed rulemakings that the change will assist businesses by streamlining the process to get permission to hire temporary foreign workers, referred to as H-2B visa workers.

To hire workers under the H-2B visa program, employers must meet several criteria, which will remain virtually unchanged even if the proposed changes are adopted.

However, the proposed changes would mean that employers wouldn't have to provide as much up-front documentation. And random, spot checks would only be done after petitions for visas were approved.

The criteria for H-2B workers include:

  • the job and the need to fill it must be a one-time occurrence or be based on a seasonal, peak load or intermittent need;
  • employees cannot become part of the employer's regular operation after their H-2B visas expire;
  • employers must show that there are no qualified U.S. workers willing to fill the position; and
  • employers must agree to pay the H-2B workers the prevailing wage and offer working conditions comparable to similarly employed U.S. workers.

"OOIDA has concerns about the vague description of the audit process," the association's attorney Claire Shapiro wrote in the comments on the proposed rulemaking. "(The department) has not indicated what percentage of approved petitions will be audited .

"The notice (of the proposed rulemaking) does not provide any time frame for audits . finally, the notice does not indicate for what length of time debarment (of an employer from the H-2B program) would be recommended for any particular violation."

Even if the feds address those concerns, OOIDA's attorney said another key issue in the matter revolves around a three-letter word - "may."

As proposed, the rule merely states that the Department of Labor "may" recommend to Homeland Security that an employer that lies or fails to comply with the rules be banned or "debarred" from filing for H-2B workers for up to three years.

- By Coral Beach, staff editor
coral_beach@landlinemag.com

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