Capitol Hill

With federal immigration policy remaining unsettled and state and local governments passing antiimmigration laws across the U.S., NRCA has been experiencing an increase in inquiries regarding the H-2B visa program. The H-2B visa program is a temporary non­agricultural seasonal worker program used by construction, forestry, ski resorts, hotels, restaurants, landscaping, housekeeping and other industries to supply them with guest workers.

The H-2B process requires approval of petitions and applications from four government agencies during a 120-day period. Between 60 and 120 days before a temporary worker is needed, an employer must process a Labor Certification Application with its local work force agency. When the process is complete, the application is sent to the U.S. Department of Labor (DOL), which will generate the actual certification.

DOL reviews the application to determine whether sufficient recruitment took place by the employer to hire U.S. citizens and whether the wage is high enough to ensure there will be no adverse effect on wages paid to U.S. citizens in similar positions. If DOL determines qualified U.S. citizens are not available and the applicant's temporary employment will not adversely affect the domestic work force, DOL will certify the application and return it to the employer.

The employer includes this certification when filing an H-2B petition with U.S. Citizenship and Immigration Services (USCIS), a bureau of the Department of Homeland Security. If USCIS is satisfied with the information filed, it will approve the petition provided the H-2B visa program's annual cap of 66,000 visas per federal fiscal year has not been reached; the federal fiscal year begins Oct. 1.

Following USCIS's approval, the temporary worker files an H-2B visa application with the appropriate consulate of the U.S. State Department. The consulate then conducts a background check, interviews the applicant and, if satisfied, issues a visa allowing the temporary worker to come to the U.S.

H-2B Workforce Coalition

NRCA is a member of the H-2B Workforce Coalition, which supports the Save Our Small and Seasonal Business Act of 2007, S. 988. This bipartisan bill would renew the relief provision from the annual cap of 66,000 for the H-2B visa program that Congress initially approved in 2005. The provision exempts temporary seasonal workers who have participated in the H-2B visa program and completely followed the law during the past three federal fiscal years from counting toward the statutory cap of 66,000.

The congressionally mandated cap of 66,000 was established in 1990 and does not reflect current economic realities or meet the needs of businesses that rely on temporary workers. In 2004, the cap was reached just six months into the federal fiscal year—before many summer employers had an opportunity to apply for seasonal workers.

Each subsequent year, the cap has been reached sooner because of the increased need for workers and growing labor shortage. USCIS responded by split­ting the cap into semiannual periods; however, on Oct. 1 it announced the 33,000 cap for the first half of federal fiscal year 2008 was reached three days before the federal fiscal year even began and explained Sept. 27 was the "final receipt date" for new H-2B worker petitions requesting employment start dates before April 1, 2008.

Despite this situation, Sen. Bernard Sanders (I-Vt.) wants to increase the number of steps employers must take to hire workers through the H-2B visa program. On Sept. 26, he introduced S. 2094, the Increasing American Wages and Benefits Act, to add additional stipulations and paperwork and require higher pay for temporary workers.

An increasing demand

The demand for H-2B visas quickly is growing, and Congress must pass S. 988 to exempt returning workers who have counted toward the numerical limit during the past three federal fiscal years. NRCA will continue to support S. 988, as well as a dramatic increase of the statutory cap. NRCA opposes S. 2094, which would further complicate the H-2B visa program for employers and workers without legitimate justification. More information about the H-2B visa program is available at www.uscis.gov or by calling the National Customer Service Center at (800) 375-5283.

Craig S. Brightup is NRCA's vice president of government relations.