April 25, 2005

Act Providing Short-Term H-2B Relief Passes in Senate

By an impressive vote of 94-6 yesterday, the Senate passed the “Save Our Small and Seasonal Businesses Act of 2005,” (S. 352) (hereinafter “The Act”). In part the Act provides short-term relief by exempting certain qualifying nonimmigrant workers from the H-2B cap. There is a limit on the number of new H-2B nonimmigrant visas that may be issued to foreign nationals each fiscal year (FY), the new exemption would provide temporary relieve from the cap.

The Act, introduced by Senators Barbara Mikulski (D-MD), and Judd Gregg (R-NH), would amend the Immigration and Nationality Act to exempt from the cap for the fiscal year in which the petitions are submitted any nonimmigrant workers who were previously counted toward the cap at any time within the three preceding fiscal years. The Act would take effect as if enacted on October 1, 2004, and would sunset on October 1, 2006. It would authorize USCIS to accept and process these qualifying petitions no later than the date of enactment. Additionally, the Act would impose a $150 fraud prevention and detection fee on employers filing H-2B petitions on behalf of foreign workers.

Importantly, the Act could potentially free up a significant amount of H-2B numbers, as the current H-2B program has a cap of 66,000. As reported in a previous news alert, the H-2B for FY 2005 was reached on January 3, 2005, thereby leaving small business owners with the only option of filing petitions with the earliest available start date of October 1, 2005. The government FY commences on October 1 and ends on September 30 of each year. Therefore, FY2006 starts October 1, 2005. Thus, the H1B cap numbers for FY2006 become available on October 1, 2005.

The Act, included in the Senate-passed supplemental but not the House-passed supplemental, will be discussed at a meeting of House and Senate conferees. The provisions of the Act will only continue through the legislative process if accepted and passed by both Houses of Congress.

GT will continue to monitor the Act and will provide timely updates on these important issues that so significantly impact businesses in need of temporary and seasonal workers.