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New Years Eve 2019 – The Epilogue (When the Broken Immigration System Broke)

computercrashSome of you will recall my post-New Years Eve rant about the H-2B nonimmigrant visa program, and specifically the mayhem that ensued as the clock struck midnight on New Years Eve when the U.S. Department of Labor’s (“USDOL”) servers had a meltdown.[1]  As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL and, because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down.[2]  There was, according to the USDOL, over thirty times the user demand this past New Years Even compared to the previous year.[3]  Doesn’t that tell you something about the need for the H-2B visa program.

One week later – on a Monday – in the middle of the afternoon during a normal workday – the USDOL finally got its act together and most of the H-2B filings that were supposed to be filed on New Years Eve were filed.[4]  So, what happened after that?

Well, for one thing, U.S. Citizenship and Immigration Service (“USCIS”) recently announced that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019.

This is yet another example of a visa program that is desperately in need of reform and is woefully mismanaged.

In what can only be described as a glimmer of marginal and limited hope for some of our clients, on February 15, 2019, President Trump signed an omnibus spending bill which includes a provision providing limited cap relief to H-2B employers during FY2019. The Secretary of Homeland Security, Kirstjen Nielsen, has yet to announce how many additional H-2B visas will be made available for the remainder of FY2019.

The second thing that happened is the USDOL updated its procedures for processing H-2B applications.  That is, the USDOL has proposed a rule that for all H-2B applications filed on or after July 3, 2019, which is the earliest an employer can start the H-2B process for FY2020, applications will be randomly ordered for processing based on the date of filing and the start date of work requested.

Some of you will recall previous rants of mine related to the H-1B program, and specifically USCIS’s use of a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject.  I counsel my clients who we file H-1B petitions for with USCIS to “keep their fingers crossed.”   Imagine that a client hires you, pays you your fee, and you tell them to “keep their fingers crossed” that USCIS simply selects their petition – in a lottery system.  The system is ridiculous.

Politics aside, the United States is experiencing a strong economy with record-low unemployment.  The H-2B program’s congressionally mandated cap of 66,000 visas is entirely inadequate to meet the seasonal needs of the many businesses that participate in the program.  And for all the nay sayers who say “Hire American”, this program requires employers to recruit for available U.S. workers.  In most cases, they’re aren’t any for these positions.  And quite candidly, if everyone would allow for a moment of truth, U.S. workers simply do not want to do the jobs that are generally utilized in the H-2B program.  It’s just that simple.

According to the H-2B Workforce Coalition, if Congress does not take immediate steps to raise or eliminate the H-2B cap, over 70% of seasonal positions for the second half of fiscal 2019 will go unfulfilled due to cap limitations.[5]

Our government must come up with a better and more equitable system within which employers can hire the help that they need. The H-2B program is an absolutely necessary program for many many employers.  The process for participating in it, and the ability to participate in it, however, needs to be totally reformed.

[1]Recall that the H-2B visa program requires employers (or their attorneys) to sit by their computer at the stroke of midnight (on the east coast anyway), on New Years Eve, 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.

[2]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.

[3]Seehttps://www.foreignlaborcert.doleta.gov/.

[4]The USDOL reported that there were approximately 4,195 H-2B applications covering more than 79,500 workers positions.  Seehttps://www.foreignlaborcert.doleta.gov/.

[5]Seewww.h2bworkforcecoalition.com.

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