Immigration Alert: H-2B Cap Exemption Will Expire unless Save Our Small and Seasonal Business Act Is Passed

In 2005 and 2006, Congress passedóand the President signed into lawólegislation that impacts the availability of H-2B visas for temporary seasonal workers. This law is set to "sunset" on September 30, 2007. Key provisions integral to the success of many core U.S. industries (which, if they sunset, will have a tremendous adverse impact on such industries) are discussed below.

The H-2B visa program is designed to allow U.S. companies to employ temporary non-agricultural workers to meet their short-term seasonal and peak-load business needs. There are several U.S. industries, from small local businesses to nationwide chains that have come to rely heavily on temporary workers to meet such needs, including hotel/tourism and seasonal resort enterprises, large warehouse storage and distribution centers, and the construction and landscaping industries, among others. The H-2B temporary employees hired by these companies include core workers such as housekeeping staff, waitpersons, warehouse laborers, construction laborers, landscapers and other staff, who are essential to the ability to operate effectively during their company's seasonal and peak-load demand periods.

Under the H-2B program a total of 66,000 H-2B visa numbers are available annually for those employers who can demonstrate that they cannot hire sufficient U.S. workers to meet their additional needs for labor during their peak-load or seasonal demand periods and that such workers will return to their home country upon completion of the temporary program.

The recent H-2B legislation, known as the Save Our Small and Seasonal Business Act, contained two key provisions that are set to expire and that provide relief from the limited number of H-2B visas available to such employers.

These provisions:

enable employers to hire workers who have been counted against the H-2B cap in one of the last three fiscal years as an "H-2R" returning worker, and thereby obtain an exemption from the H-2B numerical cap for that three year period (This provision is significant because it enables employers to train a pool of temporary workers and rely on them under the returning worker program for that period, thereby minimizing training and recruitment costs.); and

provide for a bifurcated release of H-2B visa numbers in October and again in April of each fiscal yearóthereby protecting employers whose annual seasons begin in the second half of the fiscal year by retaining half of the visa numbers for...