UPDATE ON H-2B WORKERS

By voting to add the “Save Our Small and Seasonal Businesses Act of 2005” (SOS Act) to its version of the supplemental bill, the U.S. Senate helped ensure the passage of this short-term fix that was critically needed by American employers of H-2B workers. Now that the measure has been signed into law, the SOS Act will provide needed, yet limited, relief for this fiscal year and next by exempting from the cap those H-2B workers who have successfully used the program during one of the past three years.

The SOS Act allowed the U.S. Citizenship and Immigration Services (USCIS) to accept filings beginning May 25, 2005, for two types of H-2B workers seeking start dates as early as immediately. First, for Fiscal Year (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. Second, 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 day. This means that 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.

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In exchange for the temporary relief from the cap, the SOS Act also makes some permanent changes to the H-2B program. These changes include: creating a $150 anti-fraud fee; reallocating the 66,000 H-2B cap so that no more than 33,000 numbers can be used during the first six months of the fiscal year; increasing sanctions for employers who misuse the program; and requiring the Department of Homeland Security (DHS) to submit to Congress reports on H-2B program usage as well as statistics regarding the countries of origin of, occupation of, and compensation paid to aliens working pursuant to the H-2B program.

CURRENT CAP COUNT FOR NON-IMMIGRANT WORKER VISAS
H-2B (FY 2005)* H-2B 1st Half (FY 2006) H-2B 2nd Half (FY 2006)
Cap 35,000 33,000 33,000
Beneficiaries Approved 19,403 11,957 ----
Beneficiaries Pending 0 4,491 ----
Total 19,403 16,488 ----
Date of Last Count 9/30/2005 9/30/2005 ----
* The 35K is an add-on to the normal FY 2005 cap of 65K, which was reached before the end of FY 2005.
Source: U.S. Citizenship and Immigration Services (USCIS)

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