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By Wayne Pierce

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During the past few years, many amusement industry companies 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.

Several weeks ago, Senator Mikulski from my home state of Maryland succeeded in attaching a bill to an appropriations bill that would have renewed for the fourth straight season the exemption for H-2B returnees that had expired on October 1. The corresponding bill from the House of Representatives did not have a similar exemption for H-2B returnees, so it was submitted to a joint conference of senators and representatives to iron out the differences. 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 became available on October 1 of each year, and the other half were 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 first-half cap was reached last year. That means that less than 33,000 new workers remain to be assigned to H-2B employers.

On Thursday, November 8, the joint conference committee met to reconcile whether the exemption for returning H-2B workers would remain included in the joint bill. We have now learned from two independent and reliable sources that the joint committee voted to REMOVE the exemption for H-2B workers from the joint bill. We anticipate that this will be publicly announced once the joint committee has completed its work.

What Does This Mean to You?

Congress' failure to exempt returning workers will effectively eliminate approximately 50% of potential H-2B workers. Furthermore, 50% of the available 66,000 have already been allocated, while the remaining 33,000 will not be available until April 1. Although the Citizenship & Immigration Services has not yet articulated how it will allocate the remaining 33,000, it is likely that there will be some form of a lottery system. We are also seeking clarification as to the extent to which authorized workers will be siphoned off by other industries with earlier start dates than those typical in our industry, and how many will remain by the time our industry opens its season next year.

In the meantime, we are pursuing several other possible sources for labor in conjunction with our H-2B program. I am currently in Orlando for the IAAPA trade show. On Friday, November 16, I expect to present an extended list of alternatives to the OABA board of directors. We have been quietly working behind-the-scenes to develop some viable alternatives, and we have recently been meeting with what we hope will prove to be encouraging news.

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.

R. Wayne Pierce is the founder of The Pierce Law Firm, LLC and specializes in "Adventure Law" from his practice in Annapolis, MD. He writes and comments frequently on the amusement industry.

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