H-2B Cap Crisis

The H-2B visa program is a critical source of labor for many Professional Landcare Network members. You may be aware that on January 4, 2005, the United States Department of Homeland Security issued a press release stating that it had received enough H-2B petitions to meet this year’s congressionally mandated cap of 66,000 new workers. Therefore, after January 3, 2005, USCIS will not accept any new H2-B petitions, subject to the FY 2005 annual cap.

This came as devastating, yet not surprising, news to our industry. Last year, the cap was reached in early March. Exceeding the cap so early in the government’s fiscal year will make it impossible for the majority of companies in our industry to receive the workforce they so desperately need this spring.

The cap enforcement has created a first-come, first-serve environment in the processing of visas. Employers cannot file their petitions more than 120 days prior to their date of need. This alone puts contractors in northern markets at the back of the line. Additionally, there is a significant disparity in processing times in both the state and regional offices throughout the country. That, combined with incredibly limited staff resources at most of the governmental offices, whether they are state or federal, makes it impossible to predict when your petition will be ready for the final stage of filing at USCIS.

The Professional Landcare Network, working as its legacy organizations, ALCA and PLCAA, has been lobbying for a cap fix for several years. Unfortunately, with the inability of Congress to pass repairing legislation last spring, we have watched this crisis explode.

Questions and Answers on H-2B for 2005

What should I do if my application was submitted and I do not know if I made the January 3, 2005, deadline?

If you have an agent, we would suggest that you contact him/her so he/she can get you a specific answer that is based on when the agent filed your application.

If your petition did not get filed at USCIS prior to the deadline, continue to get your Department of Labor approval. With DOL approval, if a cap fix is implemented, you will be ready to go immediately to USCIS for visa approval.

Check to see what stage your application is in to see if you are out-of-luck or home-free.

  1. Will NOT be approved for workers:
  2. a. If an H-2b application has not been filed yet.

    b. If the first step in the process, the labor certification approval from USDOL, has not yet been received.

    c. If the labor certification has been received but has not yet been sent to the CIS with a visa petition application;

    d. If the labor certification was received and sent with a visa petition application to CIS on or before January 3 but not received at CIS until January 4 or later (CIS says they will accept all visa petitions received no later than close of business on January 3);

    e. If CIS received the visa petition prior to January 3 but for some reason (usually an unsigned check or some other inadequacy in the application) returned the application without receipting it.

  3. Good chance of approval for workers:
  4. a. If a visa petition has been filed with CIS and an I-797 receipt notice has been received from CIS;

    b. If a visa petition has been filed with CIS and an I-797 approval notice has been received from CIS.

What is the Professional Landcare Network doing for its members in regard to H-2B?

The Professional Landcare Network monitors, on a daily basis, all of the current and ongoing legislative communications and activities pertinent to this issue (as well as many others). We are committed to getting timely updates to you. This process was exemplified in the past few weeks when we projected that the H-2B cap would be reached in January and notified you of this possibility in previous alert communications.

Next week, in partnership with the American Nursery and Landscape Association (ANLA), the Professional Landcare Network will be hosting a summit of all industries affected by the cap crisis. The purpose of this critical meeting is to establish a unified message and a strategy to pressure Congress to implement a cap fix. The meeting will also include representatives from the restaurant, hospitality, and seafood industries, in addition to the H-2B agent community, who will discuss ways that we can work together to gain economic impact data, employer testimonials, and more for ammunition during this battle. An update of this meeting and planned action will follow.

It is important to understand that no legislation will be introduced until after the Presidential Inauguration on January 20th. However, immediate contact of congressional representatives may influence the language of the bill as well as who introduces it, supports it, or opposes it. This could make the difference in any new legislation passing or failing this year.

What should you do in the meantime?

Please continue to individually contact your legislators by phone and with letters. As we develop new strategies and positions for our association members in the near future, you may be asked to make additional personal contact with your legislators’ offices as part of a group effort with other industries.

Unfortunately, you should also be looking at all alternatives for meeting your future workforce needs. This is a situation of legal significance that most likely will not be resolved or altered quickly.

How can I best get timely information if the guidelines for this program change or if I have other questions?

We will continue to circulate timely communications on H-2B to our Professional Landcare Network associates by e-mail, fax, and through our periodic publications. If you have an immediate question about H-2B or would like some direction on a specific situation, contact Tom Delaney, director of government affairs, by fax at (770) 578-6701, by e-mail at tomd@plcaa.org, or by phone at (866) 831-1109.

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