Changes in immigration that impact your life.
Seasonal businesses cannot survive without H2B temporary workers
Small and large seasonal businesses continue to face problems obtaining labor to fill hundreds of positions which are vacant because of the unavailability of U.S. workers. The demand and supply ratio between U.S. temporary jobs and U.S. workers has taken a beating in the recent past. Some businesses have either restricted their services or have closed their doors for good because they just can’t get the seasonal workers they need. The H2B program has kept many small and seasonal businesses afloat, helping to insulate them from the shortage of seasonal workers.
The H2B cap dilemma:
The debate over increasing the number of workers that can be brought into U.S. through the H2B program is heating up. The demand for H2B workers has greatly outstripped the number of visas, currently 66,000, which Congress makes available each year. As with the H-1B program we have seen the cap being reached earlier and earlier each year. The H2B numerical limit set by Congress, like the H-1B program, applies to new filings. Aliens who are eligible for H2B status as "returning workers" do not count against the annual numerical cap. USCIS notes that the "returning worker" provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) have been extended until September 30, 2007, the end of FY 2007. For FY 2007 “returning workers” means workers who were counted against the H2B annual numerical limit of 66,000 during any one of the three fiscal years prior to the fiscal year of the requested start date.
Large scale efforts are underway by pro-immigration groups and understanding
members of U.S. Congress to make the returning worker exemption permanent,
and to alter the cap to allow the program to realistically expand based
on the needs of the American economy.
How does an employer get workers through this program?
USCIS regulations require that all employers who file H2B petitions (except for temporary employment on Guam) must include a certification from the US Department of Labor (“DOL”) stating that qualified workers are not available in the U.S, and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers.
Procedures for H2B Temporary Labor Certification in Non-Agricultural Occupations:
The DOL recently published an update on procedures for State Workforce Agencies ("SWA") and ETA National Processing Centers to follow in processing H2B labor certification applications in non-agricultural occupations (agricultural positions fall under a totally different scheme).
Highlights of the Notice Updating H2B processing at SWA’s and NPC’s
The SWAs advise employers to file requests for temporary labor certification at least 60 days before the worker(s) is needed in order to receive a timely determination. Unless the NPC Certifying Officer specifies otherwise, the SWA shall return to the employer any request for temporary labor certification filed by the employer more than 120 days before the worker(s) is needed.
TIP: An applicant outside the U.S. must apply for a visa at the U.S. Consulate with jurisdiction over his place of residence only after receiving H2B approval from the USCIS.
The DOL updated the H2B labor certification processes at SWA’s and NPC’s to be consistent across all office and to ensure that applications are processed in the most time efficient manner. We have noted that with this change the SWA’s and NPC’s have been much more stringent on the type of supporting evidence that they will accept.
To have any chance at approval, an H2B application must have clear and complete supporting evidence. In the past a business located in a tourist city like Naples, Florida, could file an application without a lot of documentation to support the seasonal need (which is obvious for a tourist city like Naples). Now, the SWA’s and NPC’s are no longer approving such applications without clear evidence of seasonal or peak load need.
These stringent measures from the SWA’s and NPC’s have also increased the burden on new businesses that do not have records for a full-year to prove the seasonal nature of their business, though they may be located in a tourist city like Naples, Florida. In the past, being located in a known tourist area would have been enough.
It is essential to qualify the business and the temporary nature of the job for H2B purposes before investing a lot of time and money only to find out from the Department of Labor that the application has not met the H2B guidelines.
Contact ExpressH2B if you have any questions regarding the H2B Worker category, or need help in filing with the DOL or USCIS. Our experienced attorneys will be happy to assist you.
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