By Jim Spencer
SpencerSpeaks.com

November 9, 2007

Ricardo Marquez, Juan Santa Cruz and Gilberto Hernandez know how lucky they are. They just don’t know how lucky they will continue to be.

For years the three men have traveled to and from their homes in Mexico to Aurora, Colo., to work as seasonal employees for JBK Landscaping. The trio would seem to be the kind of foreign workers this country needs.

They are legally employed in jobs Americans won’t do.

So it comes as a surprise that America’s immigration system keeps throwing roadblocks in their way and the way of others who want to be like them.

By law, all three men must return to Mexico at the end of this month. All three leave with the very real fear that they may not be able to return to their jobs in the spring because the visa program that keeps them employed is bogged down in the immigration debate.

For employees who perform seasonal work on what are called H2B visas, uncertainty is a way of life.

“The government has not raised the cap on H2B visas since 1990,” said Debbie Parker, the corporate controller at JBK.

The number of H2B visas stands frozen at 66,000 per year, said Parker. That’s for the whole country.

Worse, she said, Congress has failed to extend a law that exempts prior visa holders from being counted in the current year’s cap. A new law is attached to legislation on another subject that President Bush has promised to veto, Parker explained. That means tens of thousands of foreign workers who did not have to worry about the cap before must worry now. And employers who once could fill slots legally may have to make the hardest decision they could possibly face.

“We made the commitment that we want to hire legally,” Parker said.

But if the number of legal visas doesn’t expand, said Parker, it eventually could come to this: “We either hire illegals or close our doors and put 60 to 70 Americans out of work.”

Though they are Mexican citizens, not Americans, Marquez, Santa Cruz and Hernandez are worried, too. They jumped through hoops to work legally in the U.S. None of them wants to be here without documents.

Those who come illegally are stuck, said Marquez. They have a hard time going home to see their families.

With a visa, added Hernandez, you are free to go wherever you want. Undocumented workers “have to stay where they live.”

And take what they can get.

“It’s better to come with an H2B visa,” said Santa Cruz. “There are more opportunities to work with benefits.”

Why America would not expand those opportunities escapes Parker. But year after year, she and other employers seem to fight the same battle. As more pressure comes on employers to hire legal immigrants, the pressure on a fixed visa pool increases. People and companies who sacrificed time and effort to obey the law before could be penalized now because they can’t get visas.

Colorado uses 25 percent of the H2B visas issued nationally in an average year, Parker said. Only Texas uses more.

For Parker, the process begins in October with paper work filed with the Colorado labor department.

“You have to prove you cannot hire U.S. workers for the positions,” Parker said.

Then, it’s onto the U.S. Labor Department for another round of scrutiny. Then, it’s onto Immigration.

If Immigration officials approve the visas, the officials “wire consulates in Mexico,” said Parker. In March, Parker and her bi-lingual hiring manager, Luis Neared, go south of the border and find folks they have already worked with and perhaps those workers’ friends or family.

“I will not pick up anyone on the streets,” Parker said. “I do not want to bring anyone into the country who will flee.”

From legal jobs with benefits, that seems unlikely.

Santa Cruz said the people he knows who come to America illegally always ask about getting on the H2B program because it expands their opportunities.

At any rate, Parker and Nevarez round up the number of people for whom they have visas — usually about 45 — and take them to the consulate for background checks. Seasonal workers must pass another round of background checks at the border to get an I-94 work card that goes with their visa and passport. The I-94 says when workers must leave the country.

In the case of JBK that’s usually the end of November. By then, Parker has had to start the process all over again.

Despite the bureaucracy, folks like Debbie Parker remain committed to the legal visas. So do guys like Marquez, Santa Cruz and Hernandez. Still, what happens if the supply of visas runs out is complicated. All three men say they would stay in Mexico if they couldn’t get an H2B visa. But to understand why family and economic pressures might change their minds, consider this: Hernandez, a mechanic, would take an 80 percent pay cut if he worked in Mexico instead of the U.S.

A couple of years ago, the visa process ground to a temporary halt as politicians gridlocked over immigration reform. That year, Marquez, Santa Cruz and Hernandez got to Colorado in June instead of April. The financial impact on their families was severe. But the havoc wreaked on the American industries that depend on seasonal labor was even worse, said Parker.

That’s why there should be more H2B visas. That’s why the procedure for getting those visas should be streamlined. That’s why the law that keeps prior visa holders from being counted in the current cap should be renewed.

Most of the time, an immigrant’s decision to come illegally to America arises from an instinct to survive, not to commit a crime.

This makes it even more important to support those willing to forgo the temptation to cross the border without papers.

Copyright 2007 by Jim Spencer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.