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Lawn & Landscape Magazine
By: Lauren Spiers
July 2003


Classified ads like the one above may not always be so brutally honest,
but all landscape companies place them and many of those companies often
come up short in terms of finding good, qualified workers.

However, landscape companies across the country are discovering a
south-of-the-border solution to their staffing problems. Through the H-2B
program, contractors can hire foreign workers and bring them into the
United States with completely legal working papers.

Of course, contractors are busy people and dealing with government
agencies, applications and recruiting efforts is time consuming. For this
reason and others, H-2B provider companies can handle the details while
contractors focus on managing their businesses.

PICK YOUR PROVIDER
Just like interviewing a prospective employee, scouting H-2B providers
requires asking some questions and getting solid answers to help make the
right decision. Libby Whitley, president, Mid-Atlantic Resource
Association, Lovingston, Va., offers the following tips to help
contractors choose the best H-2B provider for their needs:
o Make sure the agency knows its business. An employer can be prosecuted
for legal violations perpetuated by its H-2B agent, even if done out of
ignorance.
o Ask other landscapers if they are satisfied with the quality and
timliness of their H-2B service provider
o Look closely at H-2B agencies' fees and make sure there are no hidden
charges. For instance, find out if the H-2B agency charges employers and
workers [for the same services.] Gouging workers in addition to charging
employers is an unsavory practice and in many areas the U.S. State
Department will reject an employer's visa petition if an agent charges
workers excessive recruiting fees.
o Be very leery of H-2B agents who offer to pay you to take workers.
[These companies may be] smuggling illegal aliens or are extorting
vulnerable foreigners desperate to get away to the United States.
o Remember Ann Lander's Law: "If it seems too good to be true, it probably
is." If an H-2B agent promises to deliver skilled, English-speaking
workers in fewer than 120 days with drivers' licenses who will work for $6
per hour and be happy with no more than 40 hours per week and pay $200 per
month in housing costs, keep looking.
o Be reasonable. The H-2B program is not the cheapest labor program but
it's the most reliable. Like anything else, you will get out of the H-2B
program what you put into it.

A seasonal, peak load, intermittent or one-time need, makes the lawn and landscape industry a perfect candidate.
But even green industry companies who have a constant revenue stream
cannot hire H-2B workers, and workers' visas are only valid for a maximum
of 10 months. Keeping workers in the country after their visas expire is
against the law.

There are certainly penalties for violating the terms of an H-2B permit,
but law-abiding contractors can improve their man power and productivity
by using the program. But coordinating recruitment and hiring efforts of
foreign workers is time consuming with all the government agencies
involved. And frequent trips across the border certainly don't simplify
matters.

This is where H-2B providers make a huge difference.

"It's good to use a provider because it's all we do," explains Terry
Foley, chief operating officer, Foley Enterprises, Austin, Texas. Just as
a homeowner is better off hiring a landscape company rather than handle
all aspects of the job himself, contractors often find great benefits in
letting H-2B providers handle their employment legwork.

Bob Wingfield, owner, Amigos, Dallas, Texas, sums it up: "If I were a
contractor, I would rather be selling work and letting somebody else do my
H-2B paperwork. Then, I could build up business to where I need some H-2B
workers, rather than sitting here, mired down in all the paperwork."

Jennifer Ricciardi, president, Career Company of America, Lititz, Pa.,
agrees. "The process involves so much time because there are so many
rules, regulations and requirements, that a lot of companies get
frustrated. We try to alleviate the employer's frustration and allow them
to use their time doing what makes them money."

Indeed, applying for an H-2B permit is tedious and working with the
government doesn't always produce efficient results. With three government
agencies involved, the time spent on the phone - or on hold - can triple.
"The program takes about 120 days," Foley mentions. "It starts at the
state level, which is typically the employment agency. Then it goes to the
department of labor for that region and finally to the INS (Immigration
and Naturalization Service)." The INS, now known as the Bureau of
Citizenship and Immigration Services or BCIS, ultimately grants
contractors' H-2B permits.

These steps may seem simple enough, but the trick is to complete them all
in the correct time frame. For instance, contractors are not even
permitted to submit their application to the Department of Labor (DOL)
more than 120 days or fewer than 60 days prior to the first day they need
their foreign workers. Ricciardi explains that if her client wants his
laborers to begin work on April 1, she would not be able to submit
applications to the DOL any earlier than December 1. "Of course, there's a
lot of preparation in advance of that," she comments.

In addition to performing a labor market test at the state level, which
involves placing a help-wanted ad in a local newspaper for three days,
contractors must also determine how many workers they will need and begin
recruiting in the foreign country.

With so many factors to consider and coordinate in the H-2B process,
exactly what services do provider companies provide?

PROVIDER PRINCIPLES. "A competent H-2B agency should perform two main
services for clients," insists Libby Whitley, president, Mid-Atlantic
Resources Association (MARA), Lovingston, Va. "First, it has to honestly
represent its clients' labor needs to in obtaining H-2B labor
certification and visas. Second, a good agency should support clients
through the entire employment season with labor/law compliance and solving
worker-related problems."

Whitley explains that employers can be held criminally liable if their
provider company misrepresents labor needs on a federal application. Also,
"abandoning employers and workers, particularly in their first year
participating in the program, is unfair to everyone," she continues.

In terms of fulfilling these services, "we're all a little bit different,"
Foley notes. "For the most part, we all process the appropriate
applications and some companies also offer recruitment services."

Contractors may alternatively work with an H-2B attorney like Robert
Kershaw, Robert Kershaw & Associates, Austin, Texas. He and other
immigration attorneys can provide legal counsel on H-2B matters, should
the need arise.

"We guide the employer through the H-2B process and the paperwork, up to
and beyond when employees arrive," Kershaw explains. "If the employer has
further questions regarding an employee taking off without telling anyone,
for instance, they'll call us and we can give them legal advice as far as
what their responsibilities are under the H-2B program."

Another facet of the H-2B provider is the H-2B recruiter like Jeff West,
general manager, LLS International, Goodrich, Mich. West and other
recruiters work with contractors through their H-2B providers to find
laborers and also act as a contact for the workers once they're in the
United States.

"If a worker has a complaint about something [with their employer], we
want to know about it," West asserts. "Oftentimes, it's something minor,
but if we get two or three workers complaining about the same thing, that
raises a red flag and we then notify the provider who contacts the
employer to see what's going on." West describes recruiters as "advocates
of the workers," but notes, "we encourage the workers to go to their
supervisor first with a problem, but to let us know if we can help resolve
any issues."

Ricciardi's clients work with recruiters in Mexico and South Africa (an
up-and-coming H-2B source) to find and interview prospective employees.
Kershaw also subcontracts with recruiters in Mexico, but Foley Enterprises
does not recruit, allowing contractors to choose workers themselves.
Still, the company does have a colleague in Mexico to facilitate
employer-worker interactions and represent workers at the U.S. Consulate
where they receive their visas.

The majority of H-2B providers stay in constant contact with their clients
even after the workers arrive. "We give employers all the information they
need for when the workers get up here - getting social security numbers
and numbers for their dependents, for example" Foley adds. "We want the
recruits to be successful, so we do stay in constant communication and
continue to advise and assist employers."

Recruiters can also aid in the transition to American culture. "We provide
workers with debit cards - although they don't always want to take them,"
West remarks. "They can use one card to get direct deposit from their
employer and leave the other card with their spouse so they can take money
out." For a fee, West's firm also helps acquire individual taxpayer
identification numbers to account for all of a worker's dependents, and
files income tax returns as well.

MONEY & MUST-KNOWS. Hiring an H-2B provider isn't free, but most companies
are reasonably priced, considering the value foreign workers can bring to
a business.

"For a long time there was a per-visa price," Foley remembers. "We went to
a flat rate last year and I think the trend is really moving that way."

Per-visa prices can range from $150 to $750 each, depending on the number
of visas needed. Ccompanies like Foley Enterprises, however, use tier
systems by applying a flat fee up to a certain number of visas.
Contractors who need one to 20 visas can expect a charge of $2,000 to
$3,500, and for 21 to 100 visas the cost goes up to about $5,000. Foley
notes that 10 is the average number of visas requested.

For one to 100 visas, Kershaw also uses a flat rate. "The fee is not per
visa - it's per application," he notes. "Your application can be for
several workers, but the INS does scrutinize applications with more than
100 workers more closely than if you're asking for 20." Kershaw also says
that providers should never charge the worker for the cost of their visa
because that constitutes visa selling, which is illegal.

These fees are money well spent, but contractors shouldn't expect the
charges to end there. Employers must pay for the labor market test
help-wanted ad, and, as expected, the U.S. government must be compensated
as well. A $130 processing fee is required, but recent policy changes
compel employers to pay an additional $1,000 "expedite fee" to ensure
quick approval.

"The standard processing fee is very small, but there's no guarantee that
the workers will arrive on time," Ricciardi laments. "The BCIS gives a
time frame of four to six months to look at your application, so a lot of
companies do pay the expedite fee and the BCIS agrees to look at it within
15 days."

Wingfield encourages his clients to pay the $1,000 since not paying the
fee can significantly lengthen the application process. However, he notes
that premium processing is charged per application rather than per visa.
In other words, if a clients requests Wingfield's four-worker minimum, the
employer must only pay for premium processing once, since all four
workers' information goes on one application.

Providers comment that the H-2B process can move quite smoothly, but this
depends largely on contractors' cooperation.

"[Employers] have to be aware of how long the process can take and that
it's very important to always be available to the process and respond
immediately to any requests," Foley emphasizes.

Most providers begin working with their clients between June and August
with the aim of having all foreign workers ready to go by the beginning of
February.

"Prospective H-2B program users need to decide on whether to use the H-2B
program and who to hire as an agent in late summer or early fall of the
year preceeding the intended H-2B employment," Whitley remarks. "For
instance if [contractors] intend to use the H-2B program for workers
starting in spring (February or March) 2004, [they should] start looking
around now."

The author is Assistant Editor of Lawn & Landscape magazine and can be
reached at lspiers@lawnandlandscape.com