July 23, 2008 - United States Citizenship and Immigration Services (USCIS) announced this week that it has received applications for approximately 31,619 potential H-2B workers for the first half of fiscal year 2009, beginning October 1, 2008. Currently, the 66,000 H-2B visas available annually are divided into two equal groups for the first and second halves of the fiscal year, and the second group of 33,000 visas is available beginning April 1, 2009. The H-2B category enables employers with a seasonal, peakload or a one-time occurrence need to supplement their workforce. This category is generally used by landscaping, lumber, manufacturing, construction, healthcare and resort/hospitality service companies. The available H-2B visas are going very quickly this year. Last year, the H-2B cap for the first half of the fiscal year was reached on September 27, 2007. In fiscal year 2007, the cap was not reached until December 5, 2006; and in fiscal year 2006, it was not reached until December 16, 2005. However, in previous fiscal years, some H-2B workers were not counted against the cap under the “returning worker” provision of the Save Our Small and Seasonal Businesses Act of 2005, which exempted individuals who had received H-2B visas during one of the three previous fiscal years. However, the “returning worker” provision has not yet been extended to include workers currently seeking H-2B visas.

BAL Comment: Unless legislation pending in Congress is passed to extend the returning worker provision, H-2B caps are expected to be reached more quickly in the coming years. While there are several bills pending in the U.S. House of Representatives, and a bill is pending in the Senate to extend this provision, no extension has been passed to date.