Guam and the CNMI are able to allow H-2B workers–that is, foreign construction workers–to work on projects outside of military development.
Guam Department of Labor (GDOL) Director David Dell’Isola said that they were able to prove to the United States Citizenship and Immigration Services (USCIS) that the island has suffered significant construction labor shortages following the National Defense Authority Act of 2021 (NDAA).
The recent guidance from USCIS empowers a GDOL official to allow H-2B workers on-island for the explicit purpose of developing housing units and/or other infrastructure projects for the general population of Guam if they can prove that project was adversely affected by military realignment.
“Back in July, the Governor met with the USCIS and Homeland Security for the first time in the history that I’ve ever known,” said Dell’Isola. “USCIS, back in September, reached out to us and were saying after hearing from the Governor, they were trying to clarify the guidance with the ‘adversely affected by’ in the NDAA.”
Among other things, the NDAA has allowed for a temporary exemption to the issuing of H-2B workers in Guam. According to the USCIS, “Housing development projects, in addition to infrastructure improvements, are likely to qualify for employment of H-2B workers under the NDAA exemption, given an inherent need for additional housing capacity to support the military realignment.”
To allow a petitioner to qualify for an H-2B visa under the NDAA, the Rear-Admiral needed to prove that their labor is “directly connected to” military realignment.
Military realignment programs, according to Dell’Isola, have taken a significant amount of the construction labor force in Guam. At least in the last year, H-2B workers worked primarily on military development, namely, for housing projects and infrastructure improvements.
“We all know,” Dell’Isola told K57’s Patti Arroyo, “almost all contractors, that are any contractor, are doing federal military projects.”
As a result, the construction labor force for non-military projects has become narrow. In other words, while Guam’s labor force focused on military development and realignment in Guam, there were sparse resources focused on developing Guam infrastructure for the general population.
“Adversely affected by”
Where the military needed to prove to the USCIS that an H-2B visa would be “directly connected to” the military, GDOL would need to prove that they were “adversely affected by” the military.
Dell’Isola said, “USCIS wanted data–all kinds of data proving ‘adversely affected by.'”
After many meetings between GDOL and USCIS, the federal government concluded “there is significant evidence that the military realignment has had an adverse impact on the availability of necessary construction labor on Guam.”
For a petitioner to successfully qualify for an H-2B, a GDOL official may write a letter to the USCIS detailing how the project that would receive the labor has been negatively impacted by a construction labor shortage.
The qualifications for GDOL’s criteria in determining Adverse Effect are available in full on their website.
Below is the policy alert issued by the USCIS:USCIS guidance