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H-2B Reform Included In Appropriations Law - FAQsby Gregory Siskind
Congress included in the new spending bill provisions
designed to improve the H-2B program. The changes will make more H-2B visas
available and also change the way they are allocated to make sure that
industries on different schedules have equal access to H-2Bs. How will the
new law change the way H-2Bs are allocated each year? First, employers that need H-2Bs in the second half of the
fiscal year have been out of luck recently as winter ski resorts on the west
coast have gobbled up available visas early in the fiscal year leaving little
for the summer resorts on the east coast, hockey teams needing players, the
seafood industry in several states, and various other employers across the
country that can’t use H-2B workers during the October through March
period. The new law now allocates half of the 66,000 annual H-2B
cap for applications for people entering the US in the first half of the fiscal
year and half for those entering in the second half. Does the new
law increase the H-2B cap? Not directly. But it will still have the effect of
increasing the cap. The new law will increase the overall number of H-2B visa
holders in the US by no longer counting H-2B workers toward the cap if such
workers have been counted against the H-2B cap in any one of three fiscal years
prior to the year of the start date of the H-2B applications. This is expected
to increase substantially the number of H-2B visas available each year since
many H-2B seasonal workers have been counted multiple times against the
cap. When will the
new law go into affect? The law regarding not counting previously counted workers
against the cap goes into affect for this fiscal year as if the law was enacted
on October 1, 2004. Is the cap
exemption provision permanent? No. It expires on October 1, 2006 and Congress will need to
extend it next year. When can I file
cases under the cap exemption provision? USCIS must begin accepting cases within two weeks after the
President signs the law. DHS will also be able to accept applications based on
statistical estimates on how many people they think will become cap exempt under
the new law since the cap was hit several months ago for this fiscal
year. Are there new
fees? Of course. The fraud detection and prevention fee recently
added to H-1B and L-1 cases will now apply in H-2B cases, except the amount will
be $150. When will the
new fee go into effect? Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com. The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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