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Additional H2B’s: Too Little Too Late

The administration has announced it is allowing an extra 15,000 H2B visas for this fiscal year, meaning right now up to October 1st.  This action is necessary but too little too late.  The H2B seasonal worker visa requires a labor certification process be completed and certified by the Department of Labor before the employer can file a petition with Immigration (USCIS).  The labor certification process requires the employer document recruitment efforts and prove there aren’t Americans available to do that job, as well as demonstrating the employer will pay the proper wage.  The process can take several months.  Only after the Department of Labor has certified the job, can the employer petition for the workers.  Moreover, the employer may need to file many petitions depending on the number of workers needed and at which U.S. consulate they will be applying for the visa.  Many legitimate employers with a genuine need for H2B workers were locked out of filing this year, because the numbers were used up.

Different types of immigration status are limited to a certain number of foreign workers per U.S. government fiscal year, October 1 to September 30.  For many years now, H1B petitions have been prepared to be received by USCIS the first workday after April 1.  Employers are allowed to file the H1B petitions 6 months prior to the numbers becoming available on October 1st.  Because many more petitions are received in the first few days of April than there are H1B visas available for the fiscal year, USCIS then conducts a lottery to determine which of the petitions filed will be selected for further adjudication.  However, H2B visas work differently.

H2B visas for seasonal workers cannot be filed sooner than 120 days prior to the “need date.”  After all, the season is dictated by the work not the visas.  The lack of available visas for these necessary jobs means that some industries will, and this year did, lose out.  The release of 15,000 visas at this time of the year when the summer is more than half over is a mere gesture at best.  There is no time now to do the labor certification process prior to filing the petition, and the workers were needed to be on board weeks ago.

This situation must be addressed.  Not only does the number of  workers need to be increased, but the timing of filing must also be changed to give those industries with a later “need” date a fighting chance to obtain necessary workers in a timely manner to do the job.