HAGÅTÑA (The Guam Daily Post) — Recently released federal guidance narrowly define what projects local contractors can hire skilled foreign workers to work on, said Guam Delegate Michael San Nicolas.
U.S. Citizenship and Immigration Services recently updated guidance on provisions of this year’s National Defense Authorization Act passed by Congress and signed into law. Recent NDAAs, specifically, those passed in 2018 and 2019 made certain allowances for H-2B workers for Guam and the CNMI, which allowed local contractors to again hire foreign help and begin moving on stalled projects. This year’s NDAA aimed to further clarify and ensure Guam’s construction industry received the workforce support it needs for both inside and outside the military gates.
“Congressional intent with our H-2B amendment in the 2021 NDAA was clear, our language was sufficient, and we will do the work necessary to bring USCIS onto the same page in authorizing temporary labor for civilian projects adversely impacted by the military buildup demand on available labor,” San Nicolas stated on Saturday, pointing to the May 13 guidance from USCIS.
“USCIS is attempting to interpret (the provisions) in a way that…is inconsistent with the statute.”
Around late 2015, the federal government changed its position on existing H-2B policies, which led to zero approvals from local companies requesting skilled foreign laborers. This from what had previously been a near 100% approval for skilled foreign workers.
This led to a near halt of construction as many companies relied on foreign help to augment their local crews. The lack of workers meant ongoing projects for the local government, private sector, and military were severely delayed. Additionally, start dates for new projects were postponed.
The NDAA for fiscal 2019 included provisions that allowed H-2B workers to work on non-military construction projects, provided the projects are associated to the military buildup. Construction companies on Guam celebrated as it meant more private sector projects could move forward.
San Nicolas stated that the 2021 NDAA expanded what was allowed in terms of bringing in H-2B workers to include “projects adversely affected by the buildup.”
“This is the key language to open it up to civilian projects,” the congressman said.
According to the guidance, the 2021 NDAA said H-2B workers are eligible to perform services or labor in Guam or the CNMI that are either:
• Under any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that are directly connected to, supporting, associated with, or adversely affected by, the military realignment occurring on Guam and the CNMI, with priority given to federally funded military projects; or
• As a health care worker at a facility that jointly serves members of the U.S. armed forces, dependents, and civilians on Guam or in the CNM1
The new guidance states that requests for skilled foreign workers must be for projects “for labor or services for construction, repairs, renovations, or facility services must be supporting, associated with, directly connected to, or adversely affected by the military realignment.”
“It cannot be only incidentally or tangentially related to the realignment. The claimed relationship to the military realignment, whether directly connected to, associated with, supporting, or adversely affected by, cannot be purely speculative (that is, based on assertions with no documentation to support the claim). If the contract or subcontract includes multiple service or labor projects, all such projects must have at least one of the above-described relationships to the military realignment.”
San Nicolas said this latest guidance is an attempt to continue denying civilian H-2B requests despite the change in statute.
“Our office is in communication with Guam Department of Labor as well as several adversely impacted contractors seeking access to H-2B labor for civilian projects in line with the statute,” San Nicolas stated.
