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Carnivals Go To Washington: Last Minute Lobbying by Midway Companies Gets H-2B Cap Relief

5/3/2017

By Timothy Herrick

Photo courtesy of Reithoffer Shows

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In spite of opposition ranging from Labor Unions to Numbers, an immigration reduction organization - and an Attorney General who as a Senator was a leading opponent of any guest worker visa programs - carnival companies, concessionaires and others should be able to receive their needed workers if not by Memorial Day, probably by mid-June.

Led by the Outdoor Business Amusement Association (OABA) - an active member of the H-2B Workforce coalition - a group of about 40 industries who rely on seasonal workers, including seafood processing, amusement parks and hospitality - a contingent of carnival companies and other interested fair industry members did a fly in to meet with members of congress to push for inclusion of language in an appropriations bill - basically the budget bill that both houses of congress pasPhoto By Reithoffer Showss to keep the government running through September - that would allow visas for workers to be processed. Indicating the seriousness of the issue especially for midway providers, the group that went to Washington was a veritable whose who of the industry: EJ Dean, Chairman, Outdoor Amusement Business Association, James Judkins, JKJ Workforce Solutions, Mick Brajevich, Butler Amusements, Chris Lopez, Ray Carmack Shows, Blake Huston NAME, Mitch Irwin, NAME, Bob Johnson, President, OABA, Debbie & Corky Powers, Powers Great American , Dean Coral, Powers Great American, Michael Wood, Wood Entertainment, Rick Reithoffer, Reithoffer Shows and Andy Deggeller, Deggeller Attractions.

Acceptable Limits
At The last minute, an intensive lobbying effort had success. Language was included in the appropriations bill that, according to James Judkins, JKJ Workforce Solutions, provided cap relief. "The compromise language, with key Republican and Democrat legislators making their voices heard, provides the Secretary of Homeland Security, in consultation with the Secretary of Labor, the authority to raise the H-2B cap when the Secretary of Homeland Security determines that there is an economic need," he said. While this does set a limit, Judkins is optimistic that the limit is not prohibitive. He said "the total number of H-2B workers that may enter the US during fiscal year 2017 (is) a number that should be sufficient to cover the anticipated need for H-2B workers."

Slightly more apprehensive is Johnson, who pointed out, that the while the language enables "cap relief," the devil may be indeed in the details because the formula for calculating the returning workers still must be reached between the two departments, Labor and Homeland Security. The other very big unknown is that those departments - often at odds when comes to H-2B regulatory interpretations - are now under a new administration. Johnson pointed out that the old formula could be reinstated or a new formula devised, potentially resulting in  vastly different numbers of workers permitted under the language of the appropriations bill. In other words, while there is H-2B cap relief, how much relief and when it goes into effect is still undetermined.

"The good news is that there is cap relief, but how far it will go and the exact number of workers that can be brought in, we just don't know yet," said Johnson.  
He added, "the President still has to sign the bill, then whatever formula has to be created then the process starts again. Stay tuned, but the process will probably take at least 30 days."

But others feel the cap might be higher than anticipated, but now that amount is now up to the hands of President Trump. According to a May 2nd article in Politico - "The Agenda: 6 policies Congress hid in the new spending bill" - "The visa program, known as H-2B, is officially capped at 66,000 visas per year - but the spending bill enables the Trump administration to effectively double the number available this year, allowing as many as 69,000 additional visas to workers in 2017. The actual legislative language is confusingly written and immigration lawyers struggled at first to interpret it - to critics, an indication that appropriators wanted to sneak the changes into the bill with little fanfare. (It's what they did in last year's spending bill as well, which allowed workers who came to the U.S. in 2013, 2014 or 2015 to return in a later year and not count against the H-2B cap)... Boosting the cap from 66,000 to 135,000 would please the business community while infuriating many labor activists and anti-immigration hardliners who have long argued that businesses exploit the H-2B program to undercut American workers. The authority to expand the program lies with the Secretary of Homeland Security, and it's hard to imagine the Trump administration throwing open the door to tens of thousands of new foreign workers. But he now has that power. "
 
Tough Season
The new year's s start has been a grueling first quarter of uncertainly for many carnival companies. "Without the returning workers, it will be a very tough fair season for us," said Richard Tinsley of Tinsley Amusements. "I've called my congressman, we've done what we can."

As Tinsley explains, he received 12 last year but was requesting 14 for this year "but I would be happy with 12." His outlook for this season is grim. American workers interested in the rigors of carnival work - away from home for months - are in short supply, and other options such as hiring workers at each fair has its own pitfalls, not the least of which are higher liability and worker compensation costs, according to Tinsley. 

The H-2B program was created to recruit seasonal workers to fill jobs that Americans do not want to take. Carnival companies like Tinsely, following the guidelines of the law, make an effort to find American citizens for those jobs. The argument is that, especially as the overall job market improves, finding domestic workers for this labor force is increasingly difficult, but without a sufficient labor force, other jobs related to the industry (i.e., other midway and fair workers) are now jeopardized. 

Call To Action
That last point was the central message of an email sent on April 1st by the International Association of Fairs & Expositions (IAFE) to members soliciting support for H-2B workers. The letter read in part that the these industries - many of them made up of "small businesses... rely upon foreign workers to fill jobs. Each job filled generates additional economic impact by keeping office workers, truck drivers, and other service workers employed because the business is going forward." 

The IAFE email and its call to action was unusual in that the association devoted a sole email for this one issue, as opposed to merely including it in the weekly newsletter. 

While not exactly rare, Marla Calico, President & CEO, IAFE, , admitted it was the first such H-2B email of 2017. "H-2B remains a concern for a segment of our membership - mobile amusement companies and concessionaires - and that concern has impact with our member fairs," said Calico." Therefore we feel that when necessary we will share information which has been provided to us by OABA and their lobbyists on this matter."

The IAFE letter and call to action stated: "Did you know that the mobile amusement companies alone will need 5,000 workers in 2017?... You often hear from the IAFE, OABA or NICA that H-2B Visas which are required to fill these jobs. This year it is ever-more important to let your voice be heard with legislators in Washington, D.C. to let them know that the H-2B visa program is important to your fair, your region, and your state."

"We look to OABA's lead and when possible we support their work by keeping our members of informed, "said Calico. 

"We need our fair partners, to help with lobbying efforts and the IAFE has been fantastic in their support," said Johnson.

Long Term Solution
While the stop gap measure of immediate cap relief was achieved, the OABA and the H-2B Workforce Coalition is seeking a more long term solution that would avoid what has become an annual scramble to find foreign workers by negotiation with an ever-changing visa program. Two similar acts have been introduced in the Senate and House, according to Gregg Hartley, of Cloakroom Advisors, the OABA Lobbyist: "the Save our Small and Seasonal Businesses Act of 2017, S. 792, introduced in April of 2017 by Senators Thom Tillis (R-NC), Angus King (I-ME), Susan Collins (R-ME), John Thune (R-SD), Mike Rounds (R-SD), Roy Blunt (R-MO), John Cornyn (R-TX), Lisa Murkowski (R-AK), and Mark Warner (D-V ), and the Strengthen Employment and Seasonal Opportunities Now (SEASON) Act, HR 2004, just introduced by Representatives Steve Chabot (R-OH), Jason Chaffetz (R-UT), Bob Gibbs (R-OH), Dr. Andy Harris (R-MD), Kevin Yoder (R-KS) Billy Long (R-MO), and Judiciary Chairman Bob Goodlatte of Virginia."

"The Save our Small and Seasonal Businesses Act is a bipartisan proposal and represents the most comprehensive reform measure and it deserves a great deal of attention moving forward," said Hartley. "[House Bill] is a fairly broad authorization bill that will reform how the H-2B program would work including addressing regulatory oversight simplification."

Since the bills are in their earliest stages, it is unclear what the timeline will be and no action on them is expected this year. 

Hartley said "both bills have basic similarities but also some significant differences."

The similarities that will benefit carnival companies include: making permanent the Returning Worker Exemption; restoring primary responsibility for oversight for H-2B program to Department of Homeland Security; minimizing the role of Department of Labor; limiting onerous regulatory practices; defining wage surveys and mechanisms for establishing pay levels; and  setting 10 months as general applicability of definition as season.

Those issues have been at the core of the H-2B debate for several years now, but the new Trump Administration has one particular wild card that increases the uncertainty of the both the present and future of the H-2B program - Attorney General Jeff Sessions.

The Sessions Factor
The former Alabama Senator, as Chairman of the Subcommittee on Immigration and the National Interest, led the successful effort to ensure that the effort the increase in H-2B visas in the previous omnibus bill was not made permanent. 

"It is my understanding that certain members of the Senate seek to make this "returning worker" exemption permanent. Doing so would be a grave error," wrote Sen. Sessions. 

"Fundamentally, a cap must be a cap. Not counting H-2B workers against congressionally defined caps is as misleading to the American people and it is detrimental to wages and job opportunities of American workers... congress may not be able to flip a switch and correct all of the damage that has been inflicted on these hard-working men and women, but we can ensure that we do not inflict further harm upon them by adding to the labor force with cheap foreign labor."

As the new Attorney General, can Sessions further influence the outcome of the foreign worker visa program? "The language we proposed in the appropriation bills is an effort to restore short term availability of the information emptiness to the cap," said Hartley. "Really has little to do with Sessions. As long as employers abide by the law, Sessions as AG can have little impact on administration of the program. He may influence the willingness of the President to sign or veto new legislation." 

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