You can’t make this stuff up.  This is the world that I and a few other local colleagues of mine work in.

So, I asked my wife what she wanted to do to bring in the New Year (not that we usually do anything more than have dinner with some close friends), with the caveat that no matter what it was, I had to be home … in front of my computer … at midnight … because I had work to do. That’s right, many of my colleagues and I (on the East coast anyway) were at our offices or at our homes in front of our computers working as the clock struck midnight.  And then mayhem ensued, and I promise you, it was not fireworks or noisemakers.  Let me explain.

One of the visa programs that some of my clients use is the H-2B nonimmigrant visa program.  The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions) to accept “temporary” non-agricultural employment in the United States (e.g., landscape workers, ski resort employees, etc.).  Before doing so, however, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during a recruitment period.

Like some other visa programs, there is an annual numerical limitation for this visa program; specifically there are 66,000 H-2B visas that are available in each government fiscal year.  Also like some other visa programs, there are more companies filing applications for a temporary labor certification from the USDOL than there are visa numbers available.

Of the 66,000 worker positions that are available annually, 33,000 are allocated to each half of the fiscal year. This allows industries that traditionally have opposite seasons (e.g., summer beach resorts v. winter ski resorts) to have a “fair” chance at participating in the H-2B program to obtain necessary temporary workers.  Because of the incredible demand associated with the H-2B program (indeed even our President allegedly uses this program for his resorts), H-2B applications are now date and time stamped to the millisecond in order to establish the order of submission.  Applications are processed by the USDOL in the order that they’re received.  And for the second half of the government’s 2018 – 2019 fiscal year, the period for filing a temporary labor certification with the USDOL commenced one millisecond past midnight on New Years Eve.[1]

As the New Year rang in, the USDOL later reported that there were applications for 97,800 workers that were about to be filed by an “unprecedented volume of simultaneous system users.”[2]  The USDOL noted there were 22,900 server login attempts on January 1, 2019 versus a mere 721 attempts in the same period on January 1, 2018.  Not surprisingly, the government’s online filing system crashed. The exchange that went on over the next couple of hours, well past midnight, on the American Immigration Lawyer Service’s (“AILA”) H-2B attorney Listserv, bordered on a combination of sad, pathetic, and ridiculous.  It was also really so unnecessary.

Readers of this piece know how much I long for meaningful reform to our immigration system.  There are many substantive examples that I’ve written about over the past few years.  This is not one of them.  This is a procedural reform, somewhat selfishly written for sure (as anyone who knows me knows that I can barely stay up to 9:00 pm on a normal day), but it’s important.

What kind of program requires employers (or yes, even their attorneys) to sit by their computer at the stroke of midnight, on New Years Eve no less, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company?  And in today’s day and age, what kind of government is so ill-equipped to handle the unprecedented volume that they themselves created?  Was the system not adequately stress tested?  Was no one monitoring it (perhaps in light of the current government shut down)?

As annoying as this whole debacle has been, it’s not missing New Years that bothers me.  Everyone who knows me knows that I’m usually sleeping at the stroke of midnight in any event.  It’s that our government can’t come up with a better and more equitable system within which employers and their counsel can work to get things done.  It really is ridiculous. The H-2B program is an absolutely necessary program for many employers.  The process for participating in it, however, is unnecessarily cumbersome and needs to be reformed

^[1]For those companies (or their attorneys) filing outside of the eastern time zone, the filing time was an hour earlier for each time zone west you go.

^[2]  At that time, the USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.