"I am deeply disappointed that my language to address the H-2B visa challenges on Guam was not included in the final conference report."– Guam Delegate Madeleine Bordallo
While the number of H-2B workers on Guam continues to dwindle, Congress has dropped a provision in the fiscal year 2017 National Defense Authorization Act (NDAA) that would have provided some relief to contractors working on military projects.
According to a November House of Representatives conference report, the House receded in negotiations to bring the amendment into the final draft of the NDAA. The amendment would have granted the United States Citizenship and Immigration Services flexibility to approve H-2B application renewals for contractors involved in military construction projects as well as renewals for temporary workers in Guam's medical industry.
Unfortunately, Senate Republicans held serious reservations about the H-2B provision and fought to exclude it from the final report, according to Guam Delegate Madeleine Bordallo, the author of the provision.
"I am deeply disappointed that my language to address the H-2B visa challenges on Guam was not included in the final conference report. The provision was carefully crafted to deal with the emergency situation on Guam and coordinated with the House Judiciary Committee and Obama administration," Bordallo told the Post.
"The Senate Judiciary Committee majority viewed this provision as part of broader immigration reform, which still has a toxic perception among some Republican members."
The provision's exclusion and potential subsequent lack of relief for declining H-2B numbers may hold serious ramifications for local companies, as both industry insiders and the local labor department have indicated. There have been virtually no H-2B application or renewal approvals since the beginning of the year. In July, there were approximately 1,200 temporary workers on island. According to Greg Massey, the administrator of the Guam Department of Labor’s Alien Labor Processing and Certification Division, the number of temporary workers on the ground as of October hovered around 430.
While there have been some approvals over the past few months, these are minor in number, Massey added, and are not enough to offset increasing visa expiration that may lead to near-zero H-2B workers on Guam by next year.
"It sure looks like it," Massey said regarding the possibility of zero H-2B workers. "That's the trend unless something changes. But there is a new administration coming in. Who knows? It's still too early to tell."
While a legislative solution may be far from certain, Massey said there are other avenues that could buck the trend, including regulation change or a pending lawsuit with the U.S. District Court. In October, 12 companies filed suit against federal U.S. officials over the H-2B worker shortage.
The plaintiffs in this case argue that the shortage is causing harm to their businesses but federal officials have stated that there is no evidence that application denials were arbitrary or were made contrary to law. Spokesmen from the USCIS, the agency that adjudicates H-2B applications, have repeatedly told the Post that there has been no change with policy at the office but have added that long-term use of temporary workers may raise concern that petitioners do not meet the regulatory definition of "temporary need."
'I will continue to work'
Bordallo, on the other hand, does not seem willing to rest on the exclusion of her H-2B provision. She told the Post that she would continue to work toward some kind of relief for Guam.
"I will continue to work with the U.S. Navy, USCIS and the incoming Trump administration to address this situation in a timely manner, including introducing a similar legislative fix in next year’s defense bill if necessary," Bordallo stated.
"Further, I will work in the remaining days of the Obama administration to see if there are any emergency regulatory authorities that USCIS could utilize to address the immediate impacts of this H-2B crisis. I am deeply concerned about the impact my language not being included in the final bill could have on our economy and overall workforce."
Although the provision was not adopted, federal legislators directed the secretary of the Navy to submit a report to the Committees on Armed Services and the Committees on the Judiciary by April 2017 regarding the impacts the current H-2B visa program and renewal process have on the relocation of U.S. Marine forces to Guam.
The report is meant to include a description of the impacts to the cost and schedule of the relocation of Marines to Guam, as well as a description of the specific impacts for the military construction program needed to support the Marine relocation. The report is also meant to describe the specific impacts on the delivery of health care to support the Marines. The secretary of the Navy is also expected to to report on whether he believes changes to the statute governing the non-immigrant worker program are needed to mitigate adverse affects to the Marine relocation.
Gov. Eddie Calvo, who has been meeting with federal officials on the H-2B matter, stated that the administration was disappointed with the exclusion of the provision.
"We are not looking at this issue myopically, we continue to work with the private sector and our military and federal partners on short, along with mid and long-term options," Calvo stated.
"We will, of course, continue to support the business community that has filed a lawsuit in hopes of a remedy to their labor needs as they bid for projects. Guam Department of Labor leaders also continue to work on local and regional programs that build up our local workforce."