January 28, 2008

DOL Issues Report on H-2A and H-2B Program

Shortly after the USCIS announced that the H-2B cap had been met for the second-half of FY 2008, the Department of Labor (DOL) released statistics on the H-2B applications processed in FY 2007.  The DOL’s report shows that in FY 2007, there were significant increases from FY 2006. Specifically, the number of applications processed jumped 29%, with more than 360,147 workers requested (a 46% increase), 10,797 applications certified (an 18% increase), and 254,615 workers certified (27% increase).

It is likely that FY 2008 will continue to see a rise in the number of applications processed, due to the ever-expanding needs of hospitality, construction, landscaping and other service industries.  However, because the USCIS stopped accepting H-2B petitions on January 2, 2008, for employment beginning October 1, 2008, many of the applications certified by the DOL will most-likely go unused.

This in part, because a labor certification filed under the H-2B program, is valid only for the period of time for which the application is filed.   If the cap has been met before an employer can utilize the approved labor certification, the employer must re-test the labor market and file a new application with documentation to show a continuing labor shortage and need for the workers for the next available specific time period.

This on the heels of Congress’ inability to increase the cap and allow for additional availability for seasonal workers in the $517 billion omnibus spending bill that recently passed the House. 

The DOL also reported a 21% increase in the number of H-2A Agricultural Worked applications processed, and a 30% increase in the number of workers certified.   GT will continue to provide any further updates on the H-2A and H-2B programs.