Colorado’s low unemployment rate has generated more demand for foreign workers in order to fill voids in the workforce.
“Oftentimes, the reason [businesses] are hiring foreign workers is because they have looked and searched for an American worker and haven’t been able to find someone interested or qualified,” said Petula McShiras, an immigration attorney with Hanes & Bartels LLC.
However, in the past year, it has become increasingly difficult for businesses to get approval to bring over foreign employees to work in Colorado.
“As you have seen in the news, certain visas have become harder to get, but I would say that it’s across the board with all the visa programs -— we are seeing increased challenges in getting approval for our clients or businesses we represent,” McShiras said. “Even in cases with extraordinary and exceptional skilled workers, who are the best of the best, we are seeing higher scrutiny when employers try to bring them over.”
McShiras said the challenges are a result of executive orders signed by President Donald Trump at the beginning of 2017.
Bill Thoennes, a public information officer with the Colorado Department of Labor and Employment, said he was unsure if the “higher scrutiny” is a result of state or federal processes.
“I have heard something to that effect too but I don’t know,” he said.
When a business applies to bring over foreign workers, the application is first sent to the state.
“We are just the first step in the process for those requests,” Thoennes said. “After we do some filing work, they go to the U.S. Department of Labor at an office in Chicago that takes the lead in processing the requests and doing whatever it is they need to do. They determine how many workers on the requesting documents are brought in.”
State officials don’t track or have the total number of foreign workers in Colorado.
“The question has been asked before and we have even checked to see if another agency like perhaps the Department of Local Affairs or maybe the demographer’s office has that information and learned that apparently no one tracks that,” Thoennes said. “So it’s a mystery of what exactly the percentage is [of immigrant workers in Colorado]. It’s possible at some point someone may ask to have something like that put on household surveys that are conducted, but to date, we don’t have anything that really tracks that.”
The state can’t count business requests to bring employees over using visa programs, such as the H2-A for agricultural workers and the H2-B for non-agricultural workers, because one application can cover multiple employees.
“What you would see getting information from us is just the front end of it and the number of businesses applying,” Thoennes said. “We aren’t able to tell you how many workers were approved and are working in Colorado as a result of those requests.”
In 2017, 284 employers in Colorado requested H2-A workers and 287 requested H2-B workers, according to the state’s online database called Connecting Colorado.
Those numbers were slightly down from the previous year but significantly higher than in 2015 when 201 employers requested H2-A workers and 134 requested H2-B workers.
Through June 2018, the state has received 174 employer requests for H2-A workers and 61 for H2-B.
“However, it should be noted that the online application used to ask employers to self-identify if they are seeking H2-B workers,” Thoennes said. “That may have resulted in some employers simply forgetting to identify themselves as H2-B seekers.”
The CDLE recently changed staff and implemented new processes to provide a more accurate count of employers seeking H2-B workers.
“We have 346 employers seeking H2-B workers through June taken from that new process,” Thoennes said. “That number is higher than it was in 2015, 2016 and 2017 and would, on the surface, suggest that there are more participating employers in the H2-B program than in past years. I believe that a more accurate explanation is that we now have a more accurate count than what we had in past years.”
Meanwhile, Nina Disaldo, the executive director of the Denver-based nonprofit Towards Justice, also has noticed changes in recent years when it comes to helping immigrant workers.
“I certainly see a lot more fear, particularly in the undocumented community, but more broadly as well with regard to reporting workplace violations,” she said. “Even if those violations are very obvious, workers don’t report it because they fear losing their job or suffering immigration consequences or other types of legal retaliation.”
The organization assists workers — both foreign and American citizens — with workplace violations, including wage theft.
“We recently have noticed employers are more likely to victimize undocumented workers or workers who are vulnerable because of their language skills and because they think they won’t complain,” Disaldo said. “That certainly is what we have been seeing the past few years and with the current political climate.”
Although the short-term visa programs have suffered from reporting issues for a long time, she said.
“For example, how the worker visas require [immigrants to] maintain employment with a certain employer as part of them coming and working here,” Disaldo said. “That prevents immigrant workers in many instances from complaining about the most atrocious workplace violations.”
Immigrants can be authorized to work in the U.S. without having legal resident status if they have pending applications with the U.S. Citizenship and Immigration Services, McShiras said, adding if an immigrant is permitted to work here, they will have an employee authorization document and Social Security number.
“Employers should always follow their duties in hiring an individual per U.S. employment laws and regulations,” she said. “When any employee starts work, they have to fill out an I-9 document and that will require the documents that an immigrant permitted to work here should have.”
Immigration lawyers refer to “alphabet soup,” programs through which businesses can bring over foreign workers.
“It’s because there are several different work visas that employers can use to try and hire an employee,” McShiras said. “It all depends on the job title and the duties the employee is tasked with as well as the qualifications of the employee. Some are what we call ‘non-immigrant visas,’ where they are just bringing the worker for temporary purposes, and others may be for permanent residence.”
Regardless of the program, the wait time for immigrants to come work in the U.S. has increased.
“Even though the process has gotten longer and more difficult, we have still been able to assist our clients get visas for the employees they need to perform the work they are looking for in the U.S.,” McShiras said. “It just might take a little longer.”