The United States Citizenship and Immigration Services (USCIS) has announced that as of December 4, 2007, H-2B visas are still available. Out of the 33,000 allotted for the second half of the current fiscal year, only 2,729 beneficiaries have been approved and 4,436 are pending.
H-2B visas are reserved for non-agricultural workers who enter the U.S. to perform temporary services for an employer on a one-time, seasonal, peak load or intermittent basis.
These workers are usually needed in the construction, health care, lumber, manufacturing, food service/ processing and resort/ hotel industries. Many Filipinos enter the U.S. under this nonimmigrant visa classification.
There is an annual limit of 66,000 H-2B visas. This cap was first imposed in 1990 but it was first met only in fiscal year 2004. The USCIS employs a random selection process similar to the H-1B petitions whenever the number is exhausted in a particular year.
In response to the increasing need for H-2B workers, Congress passed the “Save Our Small and Seasonal Business Act of 2005” (SOS Act). This law provided an exemption from the numerical limitation for those who had been counted in any of the previous three fiscal years. These workers are also called returning workers.
The SOS Act divided the 66,000 into two – 33,000 in the first half that starts in October and 33,000 in the second half that starts in April. This was intended to evenly distribute the H-2B workers between the summer and winter seasons.
The law expired on October 1, 2006 but was extended through October 1, 2007. No extension has been passed for the current fiscal year although there is a pending bill that seeks to extend the exemption until 2009.
There is certainly a need to make the exemption permanent. In fact, there is an urgency to pass a comprehensive immigration reform law that will address America’s need for short term and long term workers.
The H-2B process starts with the filing of a temporary labor certification with the appropriate state employment office not more than 120 days prior to the employer’s needs.
The approved labor certification or Department of Labor (DOL) statement of no certification is then attached to the I-129 petition that is submitted to the USCIS. A labor certification does not guarantee the approval of the H-2B petition. On the other hand, a negative decision on the labor certification application does not automatically result in a denial of the petition.
Multiple beneficiaries may be included in a single H-2B petition if they will all be performing the same work for the same period in the same location.
The H-2B worker is allowed a maximum of not more than a year. In extraordinary cases, two one-year extensions may be allowed.
No Dual Intent
Unlike in H-1B cases, the filing of an immigrant petition or permanent labor certification is not allowed for H-2B workers. The rule cannot be circumvented by the filing for permanent resident status on behalf of the alien in a different job.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/