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Workers Trickle In, but Permanent Fixes to H-2B System Still Out of Reach
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Some are better than none, even if you don't know when. For Carnival companies coping with a labor shortage due to a combination of political and processing issues, by early and mid-June – long anticipated H-2B workers began arriving to at fairs, festivals and other events across the country. 

Companies are getting most of the H-2B workers they've requested and these workers are trickling in. Even though they're often uncertain as to exactly when workers will arrive, when the entire amount of their request will be filled – and no one knows if they will be able to depend on a stable foreign guest worker force next year – carnival companies are overjoyed with relief that H-2B workers are coming in time to save their season.

At 2 AM on June 13, 41 H-2b workers arrived in Maine via a chartered bus from Mexico. Smokey's Greater Shows had filed for 55 visas, but given the very likely possibility that for much of this year the number of seasonal foreign workers for this carnival company could be zero, carnival owner Robbie Driskill could not complain. “We are getting them for the opening [of the Auburn Fair in Auburn, Maine) and we're very thankful.”

If – or when – the remaining 14 workers will arrive is still unclear. Driskill's requests for these workers are still being processed, although at what processing stage they are currently at he does not know. But after having to cancel one date, postpone another and cut down the number of rides for the dates he could keep, both he and the busload of returning workers share the feeling is that, at least for the 2019 season, the worst is over. “The general consensus among the guys is that they're happy it's over,” he said. “They're happy that they can get to work and help support their families back home. They need us and we need them.”

With the labor force infusion, Smokey ‘s Greater Shows can put up a more robust footprint of 38 rides and 15 food stands. Luckily, Driskill had filled some shortages with local help, ensuring that Smokey Greater Shows can honor contracts and the small-to-midsized fairs and other events in upper New England. 

“I know the other processing is going on,” said Driskill. “We are looking forward to the Monmouth Fair, which runs through Sunday, now at it full throttle.”


STILL WAITING

But other carnival companies are still waiting. Tony Salerno, president of Windy City Amusements has not been as lucky – whereas Driskill's workers arrived by mid-June – Windy City's 40 H-2B were still a week away – “there were a lot of delays with the processing, it took a lot of time. But we know we're getting them, and our recruiter did a great job. There's been a lot of behind the scenes work.”

It will be a relief on many levels for Salerno. He's shrunk his average midway from 20 rides to as low as 15. Setting up and tearing down the show has been particularly hard with his skeleton staff. “It's been very stressful, especially tearing down, everyone is working triple hours. 

On June 21, Salerno's 40 H-2B workers arrived just before the carnival opened for its weekend events.

Maintaining the labor supply for carnival companies – as well as a host of other industries, including hospitality and seafood processing – has been problematic at best. 

The 2019 catastrophe began January 1st. H-2B visas are capped at 66,000 for the entire year but split in half; 33,000 visas are available every six months. On New Year's Day, 33,000 visas became available for the April 1st start date, but an estimated 98,000 requests for H-2B workers were filed, crashing the system, leaving many carnival companies without a workforce. On May 2 – more than a month after workers usually arrive – the Trump Administration announced a one-time only addition of 30,000 workers to the cap.  Of the 30,000, only returning workers who heled a H-2B visa one of the last three years were eligible.

But as one delay was eliminated, others emerged. The processing of each potential employee has encountered other hurdles – most but not all due to inefficiencies created by a processing system inadequate to handling the job of processing thousands of visas in a short amount of time. 

“(Workers) have started coming in, they are being processed,” said Greg Chiecko, President & CEO, Outdoor Amusement Business Association (OABA). “We would have loved to have them earlier in the season, but the consulates and recruiters are doing a yeoman's job.”


NEGATIVE IMPACT

What reports have the OABA been hearing? Understaffing has mainly caused carnival company cutbacks, negatively impacting the early fair season for many midway providers and the fairs they service. “The units are smaller,” said Chiecko. “The companies are getting by with a skeleton crew. I've only heard of three or four shows being cancelled early in the season. The larger companies have not been affected, the larger fairs were held and the Florida Fairs went off without a hitch.”

‚ÄčThe peak of the nationwide fair season begins on July 4 and the H-2B employees are expected to be here. “The early fair season was scaled down, and revenues were down, but there were no widespread cancellations,” said Chiecko. “Yes, we dodged a bullet.”

What carnival companies haven't been able to dodge is the slow bureaucracy of an over-taxed system. “There's only one reason the workers are trickling in - there's only so much capacity at the Mexican and South African consulates, where they process all visas — all — not just H-2B visas,” said Michael Wood, Wood Entertainment Company, and president of the Seasonal Employment Alliance.

According to Wood, it is taking about three weeks – 15 working days – to adjudicate each petition.  

Wood received 16 of his workers the first week of June, but was still waiting on additional workers when interviewed by Carnival Warehouse.  Like other carnival companies, Wood Entertainment Company has been making due with a skeleton crew and local help, but that has hindered the operation. “We've used less equipment and we can't use the more sophisticated equipment that takes extra time and experienced staff to set up, he said. “When you don't have a full staff, you put up fewer rides and that cuts into your profitability. What the H-2B provides us is an experienced work force to maintain a level of safety and professionalism in the industry.” 


DELAY ARRAY

‚ÄčThe increased cap might have meant that the 2019 H-2B crisis turned the corner, but subsequent delays have prolonged the suffering for individual midway providers. “We won't know when they'll be there until they get there,” said James K. Judkins, President of the JKJ Workforce Agency, who recruits and aids in the processing of guest workers for carnival companies, concessionaires and circuses. “The approvals are trickling in.”

The reason the flow of workers is so slow? Mainly the system has been overwhelmed by both the requests and the processing required per requests that begins with U.S. consulates in foreign countries, mainly Mexico and South Africa. “The consulates only have certain capacities,” Judkins explained. “If the number of workers overwhelms the system, it disrupts the whole process. Each worker is in a line to fill out the forms and go through the system, but due to the demand, the systems are crashing. The consulate workers are doing a heroic job processing, but it's not mathematically possible to process all the visas requested in the time they have.”

Besides the crushing number of requests, a new computer program had been implemented by the program managers, and users – both those filing and those processing – learning the system has caused further delays. “Just trying to get the forms filled out is taking much longer than usual now,” said Judkins. 

Further complicating matters have been issues ranging for individual consulate culture – some embassies are processing the electronic paperwork much faster than others, there's no system-wide standard or protocol– to delays with buses and lodging, transportation. 

The delays seem to be  the result of a cascading effect, for examples many workers arrive in the city where the consulate is located for the personal interview processing phase, but the consulate processors are dealing with a backlog of requests and the workers must wait an extra day or two to be processed, but all the available hotels are filled up with H-2B workers waiting for processing. 

“It's been one train wreck after another,” said Judkins. “Some California service centers are approving workers, others are pending. It's just very frustrating. I get calls from clients saying I'm still waiting but my competitor has gotten workers. I can't give them an answer, there's no logical reason for the delays.” 

For Judkins, the most frustrating aspect is not just the delays and snafus at every step of the process, but “that this was all avoidable. It's a lack of political will to fix a broken system that caused it.” 

Besides the vast number of visa applications overwhelming the processing system, the government seems intent on throwing additional, last minute hurdles. For example, the U.S. Citizenship and Immigration Services is now implementing a security check on each worker. In a recent email, Judkins pointed out. “The individual must undergo a true security check at the US Consulate prior to visa issuance and at the Port of Entry prior to admission.  So this third level of redundant security is an incredibly frustrating waste of taxpayer dollars and the delays are causing permanent harm to the employers and workers.”

How long will the trickle keep trickling? No one can say for sure, but the situation has created a race against time. Carnival companies who lost early season revenue because of cutbacks in the number midway rides and/or cancelled dates are under pressure to make up losses. The slower the trickle of workers, the longer the postponement of a full complement of rides for many ride companies, thus the longer lower revenues could persist. 

This only time will tell answer also applies to the question of whether or not the pool of returning workers will  be adequate to meet the 2019 labor demand. One of the stipulations of this year's ‘one-time-only' cap, was that only returning workers would be eligible. Most carnival companies have a loyal crew whom they use year in and year out, but even in more normal, non-nightmare H-2B years, attrition occurs, employees get other jobs, etc. 

This year, with so many weeks of uncertainty about the stability of the system, that attrition rate steepened, causing many employers to look outside their dependable foreign labor workers, which not only adds additional delays in actually getting the workers, but also whether or not there will be enough eligible returning workers to fill in gaps will not be known for many weeks. A short-handed season may simply be a reality for some carnival companies throughout the 2019 season.


MAY TO SHALL 

Will the 2019 nightmare persist into 2020? If no legislation is enacted, it will be the same scenario as previous years, a 66,000 cap split in two batches. This cap is always exceeded, and lobbying by the SEA, OABA, and the H-2B Alliance, has always resulted in an eventual increase in the cap through language in appropriations bills.   In 2017 and 2018, the cap was raised to 15,000.  In 2019, the cap increased to an additional 30,000 but limited it to returning workers.  

The ultimate goal is an authorization bill, that would replace an arbitrary cap system with a worker cap that is regulated by the size of the actual demand for foreign labor. The potential for this system-wide change in regulation seems problematic at best, especially if the congressional debate on any authorization bill occurs during what is bound to be a contentious presidential election year. 

“We are working towards a more rational allocation system,” said Chiecko. “We are working on an authorization bill that will fix the system, but the reality is that immigration is not a good word in Washington and the H-2B system is caught up with the immigration debate.” 

The Catch-22 of the political calculation being made by representatives of industries that use H-2B workers and the legislators who support them is that the same reason that makes an authorization bill unlikely also encourages doubt that a 2020 cap can be passed again. Immigration is one of the most heated issues in the country, and H-2B supporters have been unsuccessful in fully separating the H-2B crisis from the raging Immigration debate.

But another, perhaps  short term solution, has emerged, that may be politically palpable. On June 11, 2019, an appropriations bill with H-2B language was passed, but with a minor but critical verb change.  The appropriations bill contained language allowing the Department of Homeland Security to  increase the cap, but this new appropriations bill changes “may” to “shall,” a huge step forward in legislativese.  

“We have been working on getting that one word changed for three years, because it takes the delay and discretion away from the DHS Secretary,” said Judkins. “When the cap hits, the Secretary would be required to issue the additional visas.  There is a long road to go between now and the bill actually becoming law, and we had language in last year's bills that was stripped out of the final bill, but to have this done so early in the year, in the Democrat controlled House, with a bipartisan voice vote, is a very good sign.”
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