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Temporary Worker Programs

On Jan. 3, 2005, the U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough petitions to meet this year’s Congressionally-mandated cap of 66,000 new H-2B workers and would not accept any more petitions for such foreign workers until after Oct. 1, 2005.

This affects alien workers in many industries, including those in the horse industry who work in semi-skilled jobs at racetracks, horse shows, fairs and similar non-agricultural exhibitions. It prevents them from being issued H-2B visas after Jan. 3.

While it appears that many workers in the horse industry had already received H-2B visas prior to the cap being reached for this year, not all did. In addition, this will be an annual problem until it is finally fixed by Congress. If your sector of the industry uses H-2B workers, you should be concerned about this problem even if you were not affected this year. Absent a permanent change in the law, your alien workers eventually will be affected.

The H-2B worker program is used for lesser-skilled, non-agricultural workers employed in many diverse industries. It is for “temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.”

Since 1990 there has been a Congressionally-mandated cap of 66,000 on the visas that can be issued annually. Last year was the first that it was reached -- or that it was enforced. This is the second year and the limit has been reached much sooner. A new allotment of H-2B visas will be available on Oct. 1, 2005 for the 2006 fiscal year.

H-2B workers are used throughout the horse industry in non-agricultural jobs. In the racing industry individual trainers and horsemen's associations have organized ongoing programs to employ and bring aliens into the country to work on the backstretch under H-2B visa programs. These programs could be affected by the action of the USCIS, depending on when the admission period for the workers ends, whether it involves new workers or the extension of existing H-2B visas and other factors for particular workers. But any individual or organization seeking, or expecting to seek, H-2B visas for their workers in 2005 should be aware of the USCIS decision and review how it might affect the admission of such aliens.

Some H-2B visas do not count toward this annual limit, including petitions for current H-2B workers. Therefore, the USCIS will continue to process petitions filed to:


* Extend the stay of a current H-2B worker in the United States;
* Change the terms of employment for current H-2B workers; or
* Allow current H2-B workers to change or add employers.

Several bills have now been introduced to resolve the issue for this year. Sen. Barbara Mikulski (D-MD) introduced the “Save Our Small and Seasonal Businesses Act” (S. 352). This bill is supported by most of the affected industries. It would:

* Exempt returning seasonal workers from the cap for 2005 and 2006. Workers who used the H-2B program during the previous three years would not be counted against the annual limit. This means that alien workers who had successfully participated in the horse industry H-2B program in any of the past three fiscal years would be admitted without regard to the cap (assuming they met all visa requirements).

* Require the U.S. Citizenship and Immigration Service to immediately resume the processing of H-2B applications for 2005.

* Require that the number of visas issued each fiscal year be allocated so that the number of aliens entering the U.S. as H-2Bs during the first six months of the year would not be more than 33,000. This is intended to ensure that employers who file for summer jobs have an equal chance of getting visas.

* The changes would be effective as of Oct. 1, 2004 and expire on Oct. 1, 2006 so it would be would be good for two years.

* Require an additional fee of $150 for each application to give the government agencies added resources to detect and prevent fraud.

*Require the Department of Homeland Security to provide quarterly reports to Congress on the number of H-2B visas issued, and an annual report with a detailed analysis of the program so Congress can make an informed decision about the H-2B program.


Sen. Susan Collins (R-ME) has also introduced a bill to resolve this issue. It is similar to the Mikulski legislation. The bill also exempts from the cap workers who used the H-2B program during the previous three years, but requires that up to 12,000 visas be issued quarterly, and provides relief for an additional year, expiring on Oct. 1, 2007.

Rep. Wayne Gilchrest (R-MD) has introduced in the House a companion bill (H.R. 793) to Sen. Mikulski¹s Senate bill.

All of these bills have been referred to the respective Judiciary Committees.

Quick action will be sought on this legislation by the many industries affected. With more industries affected it is hoped that Congress will be more likely to act on this emergency legislation soon.

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