TEMPORARY WORKER PROGRAMS: H-2B WORKERS

 

Introduction

 

On January 3, 2005, the U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough petitions to meet this year’s Congressionally-mandated cap of 66,000 new H-2B workers and would not accept any more petitions for such foreign workers until after October 1, 2005. 

 

This affected foreign workers in many industries, including those in the horse industry who work in semi-skilled jobs at racetracks, horse shows, fairs and similar non-agricultural exhibitions.  It prevented them from being issued H-2B visas after January 3. 

 

While many workers in the horse industry had received H-2B visas prior to the cap being reached, not all did.  In addition, this will be an annual problem until it is finally fixed by Congress.  For this reason, those employers not affected this year could have been affected next, absent a change in the law.

 

H-2B Temporary Worker Programs

 

The H-2B worker program is used for lesser-skilled, non-agricultural workers employed in many diverse industries.  It is for “temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” 

 

Since 1990 there has been a Congressionally-mandated cap of 66,000 on the visas that can be issued annually.  Last year was the first that it was reached – or that it was enforced.  This is the second year and the limit has been reached much sooner. 

 

H-2B workers are used throughout the horse industry in non-agricultural jobs.  In the racing industry individual trainers and horsemen’s associations have organized, on-going programs to employ and bring aliens into the country to work on the backstretch under H-2B visa programs.  These programs could be affected each year by the cap, depending on when the admission period for the workers ends, whether it involves new workers or the extension of existing H-2B visas and other factors for particular workers.  But any employer or organization seeking, or expecting to seek, H-2B visas for their workers should be aware of the cap problem and review how it might affect the admission of such aliens.

 

Federal Legislation

 

Bills were introduced in both the House and Senate to resolve the 66,000 visa cap problem.  Representative Wayne Gilchrest (R-MD) introduced the House bill (H.R. 793) and Senator Barbara Mikulski (D-MD) introduced the Senate bill (S. 352). 

 

Both bills were referred to the respective Judiciary Committees.

 

 

Congressional Action

 

The Mikulski bill was included in the Senate’s version of the Iraq/Afghanistan Supplemental Appropriations bill.  After a conference with the House, Congress passed that bill with the H-2B change in it.  This will ease the problems caused by the enforcement this year of the 66,000 cap on H-2B visas.  The new provision, which was effective immediately, exempts from the cap for the next two years any foreign worker who has received a visa under the H-2B program in the three years previous.  This should benefit many employers in the horse industry who rely on the H-2B program to bring semi-skilled workers into the U.S. for non-agricultural jobs. 

 

The new provision will allow the processing of H-2B visas to proceed as follows.

 

  • Employers may once again file H-2B visa petitions and the U.S. Citizenship and Immigration Service is processing them.
  • An alien worker who received an H-2B visa in any one of the past three years is exempt from the cap, although an employer must certify that the worker received such a visa.
  • The change applies for the next two years, fiscal years 2005 and 2006.
  • Beginning in FY 2006, which starts October 1, 2005, half of the 66,000 regular H-2B visas will be issued for the first part of the year and half will be issued for the second part, starting April 1, 2006. 

 

Those who use the H-2B program should contact their attorneys or consultants to determine how the change may affect them, even if they received visas this year.  Be prepared for next year.

 

AHC Position

 

The AHC worked to ensure prompt passage of this legislation.  But this is just a part of the broader need for immigration reform, both agricultural and non-agricultural.  The AHC is working with a coalition of non-agricultural employers working to change the broader alien worker provisions.  This group, called the Essential Worker Immigration Coalition (EWIC), is working on reform of H-2B programs.  The changes proposed by EWIC are important to the horse industry.  They include:

 

·        Year-round visas.

·        Changes to the adjustment of status provisions.

·        An increase in the numbers of temporary worker visas to 175,000.

 

This broader reform legislation would benefit the non-agricultural segment of the horse industry and is part of the broader effort to pass immigration reform legislation.