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May 25, 2005
Agency Accepts More H-2B Visa Requests

U.S. Citizenship and Immigration Services (USCIS) began to accept additional petitions today for H-2B work visas under a new law allowing more foreign seasonal workers.

The H-2B visa program allows U.S. employers to request foreign workers to fill a one-time, peak load, intermittent, or seasonal need for labor when no workers are available in the local job force.

The program changes come after Congress approved the Save Our Small and Seasonal Businesses Act of 2005, which provided a temporary exemption from a 66,000 visa cap for workers who were hired through the H-2B visa program in previous years.

The legislation allows the agency to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately:

  • For FY 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as returning workers as set forth below, seeking work start dates before October 1, 2005.
  • For FY 2005 and 2006: All "returning workers," meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means:
    • In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004.
    • In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005.

If a petition was approved only for "extension of stay" in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a "returning worker" in a new petition. Any worker not certified as a "returning worker" will be subject to the numerical limitation for the relevant fiscal year.

As usual, each petition must include a labor certification from the Department of Labor (DOL). The process for labor certification for H-2B is described on the DOL website at http://www.ows.doleta.gov/foreign/h-2b.asp. USCIS will accept a copy of the labor certification in those cases where the original labor certification has previously been accepted by USCIS. For FY 2006 filings, the legislation provides that the numerical limit for the first 6 months of the fiscal year shall be no more than 33,000, with the remaining 33,000 H-2B numbers to be allocated on or after April 1, 2006.

Employers should also note that the law contains new sanctions provisions and civil monetary penalties (up to $10,000 per violation) for failure to meet any of the H-2B petition conditions and for willful misrepresentation of a material fact. These new sanctions provisions become effective October 1, 2005.