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
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
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 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.
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.
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