H-2b Visa Cap Creates Thousands of Unfilled Jobs for 2007

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The United States Citizenship and Immigration Service (USCIS) reported on Friday, March 23, that the second-half quota of 33,000 H-2B visas had been reached leaving thousands of jobs unfilled for the year 2007.

We are searching everywhere for workers that would qualify under the H2R category, however, time is against us. Unless additional visas are allocated soon, this years season may forecast doom for many American companies, said David Kotick

The United States Citizenship and Immigration Service (USCIS) reported on Friday, March 23, that the second-half quota of 33,000 H-2B visas had been reached leaving thousands of jobs unfilled for the year 2007.

The H-2b visa is the preferred visa for seasonal and temporary workers and Congress allots 66,000 such visas for each year in two installments. 33,000 visas are issued between October to April and the balance between April and September. The USCIS declared that March 16, was the "final receipt date" for new H-2B worker petitions requesting a prior to October 1, 2007 employment start date. Any petition not received by the USCIS on this date will be rejected.

According to Moses Apsan, founder of Apsan Law Group, PC, an immigration law firm that represents major Fortune 100 and 500 companies, "the problem lies not only with the limitation of visas in this category , but with the required governmental process which has built in delays." In order to be eligible for an H-2b visa, the employer must first file the H-2b petition prior to the "final receipt date." The USCIS permits the filing to occur six months prior to the anticipated start date. However, in order to file with the USCIS, the employer must first receive a Labor Certification from the Labor Department in its region. Labor Department rules require that a filing can be made only within four months of the anticipated start. Therefore delays in the adjudication caused by the Labor Department can seriously hinder the process. David Kotick, Managing Partner of the firm confirmed that "This is exactly what happened last week with more than 2,000 H-2b visas we were about to request for our clients. The Labor Department delayed its adjudication past the two months permitted by its own regulations, creating a delay of over 30 days, enough to prevent us form filing with the USCIS before the cap was reached."

The only recourse for employers that missed filing before the cap was reached is the Save Our Small and Seasonal Businesses Act (SOS), which was included in last years Department of Defense authorization bill. The bill was recently reintroduced by Senators Barbara A. Mikulski (D-MD) and John Warner (R-VA) to provide a five year extension of the Act. What the SOS does is create a new visa category called H2R for workers that if a worker has been issued an H2B visa based on an approved petition in any of the previous three fiscal years, the applicant is not counted against the current fiscal year's annual limit. "We are searching everywhere for workers that would qualify under the H2R category, however, time is against us. Unless additional visas are allocated soon, this years season may forecast doom for many American companies, said David Kotick"

Relief may be coming soon. The STRIVE Act (Security Through Regularized Immigration and a Vibrant Economy), a bipartisan comprehensive immigration reform bill introduced by Representatives Luis Gutierrez (D-IL) and Jeff Flake (R-AZ), would create a new guest worker program (H-2C visa). The program would permit foreign national workers to enter the United States to work for three years, with a possible three year extension. The annual cap for H-2C visas would be set at 325,000 with adjustments upwards for both the current and following year by 20%. The American Immigration Lawyers Association (AILA) and the American Nursery & Landscape Association (ANLA) enthusiastically welcomed the unveiling of the STRIVE Act. Immigrant rights activists said a comprehensive immigration reform bill called 'The Strive Act' tough, but long overdue.

Although no schedule has yet been set for when the STRIVE Act will be debated in the House Judiciary Committee, Speaker Pelosi has indicated that debate on immigration reform should begin sometime this spring.

Until then the frenetic search for returning workers (H2R) will continue.

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