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H2B Newsletter - Monthly Updates on Seasonal Labor Immigration.


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From the Editor's Desk


The economy is going bad to worse and one of the greatest examples for this is the falling demand for the H-1B visa. It has come as a surprise to many people around the globe that the USCIS did not reach the H-1B cap yet. It was only a year ago, when USCIS received 163,000 H-1B visa petitions for H-1B visas during the first seven days of April, far more than the 65,000 work permits available for highly trained foreigners. This year, it has been more than a week but USCIS received only 44,000 H-1B visa petitions.


The economists had already predicated about this. Economists believe the reason behind the sharp fall in the demand for H-1B visa is – the economy. The economy recession had a drastic impact on the demand for H-1B visa but now the question is – will the economic conditions affect the seasonal employment the same way?


We of course cannot predict the possible impact of the economic recession on seasonal employment. Some of the immigration lawyers believe that the H-2B visa will not be affected by the US economic conditions the same way like H-1B. And the reason behind this, they said, is H-2B is only a temporary worker visa. Prospective US employers will any how need the people to meet their seasonal and temporary employment demands.


Enhancements to H-2B program:


DHS, effective January 18, 2009 revised rule on H-2B program, from changing the definition of temporary to allow up to three years employment for a particular project, such as constructing a building, has encouraged the seasonal employers and employees. DHS announced a pilot program under which departing H-2B workers would report to DHS as they leave the US.


DHS delegated its power to enforce H-2B regulations to DOL, and limited recruitment of H-2B workers to 28 countries, including Mexico.


Up to 66,000 H-2B workers can be admitted each year to fill seasonal nonfarm jobs. Most H-2B workers are from Mexico and the Caribbean, and most fill jobs in farm-related industries, including gardening, landscaping and reforestry. Employers may apply for H-2B visas six months before they expect work to begin, and employers typically request more than the 33,000 visas available in April and October.


Between 2005 and 2007, the Save Our Small and Seasonal Business Act allowed H-2B workers who had been in the US the year before to be rehired outside the quota. A bill introduced in February 2009 (S 388) would create an H-2R visa for experienced H-2B workers and keep them outside the 66,000 quota. Senator Barbara Mikulski (D-MD) has been the main sponsor of relaxing H-2B admissions at the behest of crab processors in Maryland.


Effective January 18, 2009, employers seeking certification to employ H-2B workers must attest that the employer has forbidden recruiters from charging fees to H-2B workers. The US Circuit Court noted that this regulation would likely prohibit fees such as those paid by Decatur H-2B workers in the future.


Click here to read the complete summary on 'Save Our Small and Seasonal Business Act of 2009', which we discussed in our last newsletter.


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Get geared up for an exciting year ahead!





News Bulletin


FAQs on H2B Final Rule


The Department of Labor (DOL) published a Final Rule on the labor certification process and enforcement for H-2B employment on December 19, 2008, which became effective on January 18, 2009. The Final Rule made some significant changes in the processing of applications for H2B labor certifications.


Read More News



Featured Article


H-2B Visa - How to Prove the Unavailability of Local Workers?


The H-2B is a little understood temporary employment-based visa. Employers are often confused by the concept of H-2B temporary need, as defined by the relevant regulations, and face the daunting task of proving the unavailability of local labor. In the case of the construction industry, the task is made more difficult by union interference. This goal of this article is to demystify and clarify exactly what the H-2B visa is all about, and to offer some general information as to how a contractor might go about obtaining approval from the government for the H-2B visa to meet solution to their seasonal labor needs.


Read Full Article | Read More Articles



Questions and Answers


How should an employer advertise if the area of intended employment does not have a newspaper that runs 7 days a week?


Ans: Department of Labor guidance states that an employer must advertise the job opportunity in a newspaper of general circulation or in a readily available professional, trade or ethnic publication, whichever the State Workforce Agency (SWA) determines is the most appropriate for the occupation and most likely to bring responses from U.S. workers. If the job opportunity is located in a rural area that does not have a newspaper with a daily edition that runs 7 days a week, the employer will be instructed to use a daily edition with the widest circulation in the nearest urban area or such other publication, as the SWA may direct. (Training and Employment Guidance Letter)


More Q&A



H2B Myths and Reality


Myth: The H-2B program takes jobs from Americans.


Reality: Employers utilizing the H-2B program go through an intensive recruitment period under the supervision of the Department of Labor. Only after each State's Workforce Agency and the U.S. Department of Labor certify that these people will not negatively impact American jobs are the workers allowed to come.


News Bulletin
Featured Article
Questions and Answers
H2B Myths and Reality



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Can a foreign national who entered the US on H-2B visa, apply for an employment based Green Card?


Submit your response to the query above. The best response and the sender’s name will be published in the next Express H2B Newsletter.


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Winner of the THE H2B QUIZ - March 2009:

Victoria Manchestor

The Question:

Once the visa cap for the first half of a fiscal year has been reached, assuming the visas continue to be granted on this basis, can the DOL amend previously certified labor applications so that the date of need can start in the second half of the fiscal year?

The Winning Response:
No. A temporary labor certification is valid only for the number of foreign workers, the area of intended employment, the specific occupation and duties, the period of time, and the employer specified in the Application for Alien Employment Certification, ETA Form 750. Employers must file a new application with a valid test of the labor market and include all supporting documentation to support a new date of need.







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