H-2B Visa Cap Reached
August 6, 2008
The rush to secure cherished H-2B work visas has once again come to a grinding halt with the announcement by the US Citizenship and Immigration (CIS) on July 30 that the visa cap had been reached. The CIS will be rejecting all H-2B visa petitions received after July 29, 2008.
The H-2B visa is a temporary work visa filed used by businesses to fill nonagricultural jobs that are seasonal, intermittent, a peak load need, or a one-time occurrence. Unlike the H-1B temporary visa, the H-2B visa is available for both skilled and unskilled jobs, primarily in the fields of health care, resort and hospitality, construction, landscaping, food service and processing, manufacturing and lumber.
To qualify as a seasonal job, the sponsor must prove that the job is tied to a particular season or event each recurring year. There must be periods in the year wherein the job or ser
vice is not needed.
For a position to be intermittent, the sponsor must show that it has a need for an individual to perform services on an occasional short term basis only. The particular position cannot be one that has been previously filled by a permanent full-time staff. Conversely, to qualify under peak load need, the sponsor must prove that it regularly employs permanent full-time staff for the job which must be supplemented by temporary workers due to a seasonal or short term demand. The sponsor must evidence that the temporary workers will not become part of the permanent staff.
To qualify as a one-time occurrence, it must be shown that the sponsor has not employed anyone for that position in the past and will not have a need for that position in the future. Alternatively, a position can qualify even when there has been a prior permanent employee if there is a temporary event of short duration that arises which requires temporary help.
The H-2B visa requires the processing of a labor certification application with the Department of Labor (DOL) prior to submission of the petition with the CIS to ensure that there are no qualified and willing US workers for the intended position, and that there will not be an adverse effect on wages. The labor certification application involves a 10 day job order with the state workforce agency and publication of print advertisements for 3 consecutive days.
If approved, an H-2B visa allows an individual to work for the sponsor for up to 1 year. The H-2B visa may be extended twice for 1 year at a time, thereby totaling 3 years. Dependent family members are eligible for H-4 visas in order to reside and study, but not work, in the US for the same duration of time.
Similar to the H-1B visa, there is a limitation on the number of H-2B visas that may be issued each fiscal year. The Save Our Small and Seasonal Businesses Act of 2005 divided the 66,000 visa cap into two halves. As such, there are 33,000 visas available between October 1 to March 31 and another 33,000 between April 1 to September 30. The recent CIS announcement marks the end of H-2B availability for the first half of the 2009 fiscal year.
The CIS filing period for the second half of the 2009 fiscal year will commence on October 1, 2008. This is available for jobs that will start on or after April 1, 2009. The DOL, however, only allows filing of the required labor certification application no earlier than 120 days from the employment start date. Since the earliest employment may commence is April 1, 2009, the earliest that the labor certification application may be filed with the DOL is January 1, 2009.
It is greatly anticipated that the H-2B visa cap for the second half of the 2009 fiscal year will also be reached just as quickly as in the first half of the fiscal year. Analogously, that would be before the end of February 2009. Those seeking to avail of the H-2B visa must ensure starting the process well in advance as there are many requirements and intricate procedures that must be followed.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.
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