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H-2B Visa Crisis May Hit Industry
Congress fails to renew exemption


By Wayne Pierce

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During the past few years, many of our clients have shifted to using temporary foreign labor to compensate for the fact that they cannot find qualified American help. This need is being met primarily by H-2B and J-1 visas, with a few Q-1 visas sprinkled in.

Last week, Congress failed to act and allowed the exemption for H-2B returnees to expire. Under the immigration law, Congress set a cap of 66,000 per year on the maximum number of H-2B workers. Because of significant problems, the law was changed several years ago so that 33,000 become available on October 1 of each year, and the other half are released on April 1. Further, any returning worker who had previously worked as an H-2B employee during the prior three years was not counted toward the cap, thereby allowing an estimated 123,000 H-2B workers into the country last year. For several years, Congress has approved the exemption for returning workers, but expressly limited the exemption to a single year. In the past, Congress even allowed the "deadline" of September 30 to expire, only to re-authorize the exemption for returning workers shortly thereafter.

Meanwhile, the U.S. Citizenship and Immigration Services has now announced that the cap for the first 33,000 workers was reached on September 27, 2007. This is roughly two months earlier than the cap was reached last year. That means that less than 33,000 new workers remain to be assigned to H-2B employers.

What Does This Mean to You?

If H-2B workers are important to the success of your business, then you need to engage in the political process to have your representatives in Congress approve the exemption for returning workers. The failure to exempt returning workers will effectively eliminate approximately 50% of potential H-2B workers. Furthermore, those workers will be siphoned off by other industries with earlier start dates than those typically used by our industry. By the time our clients are ready to begin operation, few of them will open early enough to qualify for the 66,000 H-2B workers.

As an alternative, it is good business practice to continue to pursue all other viable options. In particular, you should carefully consider whether J-1 students would be satisfactory.

These recent developments do place a premium on H-2B employers to act quickly. Even if the exemption for returning workers is extended, acting quickly on your application is critical.

In the meantime, we are pursuing several other possible sources for labor in conjunction with our H-2B program. It is too early for us to comment meaningfully on our likelihood of success, but we recognize the critical importance our clients place on finding labor, and we are applying our legal skills to be able to offer you other possibilities. We will keep you posted if our efforts prove fruitful.

Wayne Pierce is a member of the Pierce Law Firm, LLC. He works primarily in the amusement industry and related fields.

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