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New H2B Visa Provisions: Senator Mikulski Leads the Pack
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It’s November and the sunny days of summer may seem far away, but the businesses that comprise Maine’s hospitality industry are already preparing for the tourist season. In Maine alone, 87,000 jobs are tied directly to the success of tourism, an industry that generates $13.9 billion annually for Maine’s economy and $556 million in state tax revenue. Likewise, the seafood and cannery industries in Maryland and Virginia, seasonal hospitality industry in Rhode Island and New Hampshire, the fishing industry of Alaska, and the logging industry in Maine have one thing in common: they desperately need seasonal workers so their businesses can survive.

Meadowmere Resort in Ogunquit, Maine, swells each summer with Vacationland visitors, tourists enjoying the coastal hotel's Roman bath, jacuzzi, spa, pools, pub and other luxuries. For 21 weeks (it’s summer season), guests pack the resort's 145 rooms, and the Meadowmere doubles the size of its staff. The resort needs at least 35 additional workers to bring extra towels poolside, serve gin and tonics at the pub, or run the room service carts up and down the halls. The Meadowmere normally can fill only about half of those open seasonal positions with local help, and traditionally has had to turn to temporary foreign workers to augment its labor force.

Businesses all over the country are facing a similar seasonal labor crisis. The shortage of U.S. workers has forced companies to rely on seasonal workers brought to the US through the H-2B program, labor that helps those U.S. companies to survive their summer or winter labor ordeals. While the H-2B is designed to help alleviate the seasonal labor shortages, all is not rosy for the employers who rely on the program for their summer tourist season. There is a national cap for the H-2B visas, and because companies are not allowed to apply for workers more than 120 days before they are needed, many businesses weren’t even able to apply for visas this year because the cap had already been reached. These businesses could be forced to limit services, lay off permanent U.S. workers or, worse yet, close their doors.

The foreign workers coming on H-2B visas have become an integral part of many businesses because of the fact that their work schedules can be adjusted to the business' needs, unlike those of other seasonal workers such as college students who must complete their classes before they can start work.

What is the H-2B numerical limit set by Congress?

The H-2B numerical limit set by Congress is currently 66,000 per fiscal year. However, aliens who are eligible for H-2B status as "returning workers" do not count against the annual numerical cap. The "returning worker" provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) were extended through September 30, 2007, the end of FY 2007.

If an H-2B petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or a change in the terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition (see “Returning Worker” below). Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Save Our Small and Seasonal Businesses Act, 2005:

The Save Our Small and Seasonal Businesses Act, signed into law by President Bush in May 2005, made significant changes to the federal H-2B (seasonal worker) program. Senator Barbara A. Mikulski’s (D-MD) legislation exempts returning seasonal workers from counting against the annual national cap of 66,000, created new anti-fraud provisions, and ensured a fair allocation of H-2B visas among summer and winter employers.

Returning Worker:

Returning workers means workers who were counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. For example, to qualify as a returning worker on a petition with a work start date after October 1, 2006 (FY 2007), the worker must have been previously approved for an H-2B work start date between October 1, 2003 and September 30, 2006.

This H-2B exemption, however, was not made permanent in the 2005 bill, and has to be extended each year, at least until Senator Mikulski’s proposal to make it permanent is passed into law. Last year, a last-minute, one-year extension was included as part of the 2007 Department of Defense authorization bill; but that extension expired on September 30, 2007.

Created New Anti-fraud Provisions:

This bill included provisions to make sure that the government agencies processing the H-2B petitions and visas have the resources they need to detect and prevent fraud. Employers are required to pay an anti-fraud fee of $150 on each H-2B petition. Those fees are to be used by the Departments of State, Homeland Security and Labor to train their employees to prevent fraud. The bill also created new sanctions for misrepresenting facts on an H-2B petition.

Created Fair Allocation of Visas:

Senator Mikulski’s bill also created a visa allocation system that is fair to all employers. It reserves half of the 66,000 visas for employers needing workers in the winter and half for those needing workers in the summer. Dividing when the visas are allocated ensures that – until a long-term solution is reached – employers who need winter labor and those who need summer labor will have an equal chance of getting the workers they need.

Created New Reporting Requirements:

Finally, this legislation created new reporting requirements for the Department of Homeland Security to ensure that Congress is kept abreast of how many people are using the program, how many are returning each year, and/or had their visa status revoked or otherwise terminated. This will help Congress make informed decisions about further reforms that need to be made to the H-2B visa program.

Save Our Small and Seasonal Businesses Act, 2007:
Senator Mikulski’s Bill to Temporarily Extend the Provision

As Chairwoman of the Commerce, Justice, Science (CJS) Appropriations Subcommittee, Senator Mikulski successfully added language to the fiscal year 2008 CJS spending bill to extend a critical provision of her Save Our Small and Seasonal Businesses Act that expired on September 30, 2007, and protects small and seasonal businesses from devastating cuts to their workforce. The bill passed the Senate tonight with a vote of 75-19. The provision is a one-year extension of the “returning worker” provision to allow companies to continue to get the seasonal workers they depend on. The new expiration date will be September 30, 2008.

Senator Mikulski joined with Senator John Warner (R-VA.) in March 2007 to introduce a stand alone bill to extend the “returning worker” provision, and also included it as an amendment to the comprehensive immigration packages considered by the Senate earlier this spring. Unfortunately, no bill was brought up for a final vote before the provision’s expiration.

We cannot forget that seafood processing, landscaping, hospitality companies and the myriad of small business owners who create those jobs depend on a successful season for their livelihood. For some states with businesses that are seasonally dependent, the implications of not increasing the H-2B cap or reworking how they are allocated is potentially disastrous. In fact, many companies use the H-2B visa program year after year to legally hire temporary and seasonal workers when American workers are not available.

Let us all hope that Senator Mikulski’s amendment to the CJS spending bill survives the next step of the legislative process when the House and Senate will meet in Conference Committee to work out the differences between the two versions of the bill. The Conference report will then be voted on by both Houses of Congress. Once passed by the House and Senate, the spending bill will go to the President for his signature. If all goes as planned seasonal employers will get the much needed extension to the “returning workers” provisions of the H-2B visa category.

With loss of the “returning worker” provisions employers will have to make adjustments in their filing procedures. For the past couple of years, knowing that they would be able to use returning workers, employers could wait until later in the season before starting the process and filing the H-2B petition. Now they will have no choice but to revert to the earlier start dates, and hence earlier filing dates, if they want to get their petitions in under the cap. If employers wait too long they may be able to get their labor certifications approved by the Department of Labor only to find that the cap has been reached and they will not be able to get the needed temporary workers. Without Senator Mikulski’s amendment final passage the ideal time for starting the process is early December.

Conclusion:

VisaPro stands ready to assist employers navigate the H-2B recruitment and filing process. Our experienced attorneys are ready to review your particular situation and help you devise a strategy to complete the recruitment and make a timely filing to get in under the H-2B cap.

We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.


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