· Exempt H-2B workers from the 66,000 annual cap if they received an H-2B visas during one of the previous two fiscal years;
· Allocate the 66,000 visas for new H-2B workers on a quarterly basis to assist employers whose season’s do not align well with the current bi-annual allocation;
· Create a system in which in 66,000 H-2B visas for new workers would allocated on a proportional basis if the cap is reached so that all employers will receive a percentage of H-2B workers.
During the markup, the amendment sponsors, Homeland Security Subcommittee Chairman Kevin Yoder (R-KS) and Rep. John Moolenaar (R-MI) all spoke very eloquently about the need for additional H-2B workers and how these workers support American jobs. If any of these Members are your Representative, please time a few minutes to say thank you.
Typically an appropriations bill only covers funding for government agencies and programs. Enabling legislation (a new law or change in existing law) is typically a different type of bill. However, as our political system has become nearly deadlocked, the only tool that we have been able to use in prior years is to have the enabling legislation added to the appropriations bill and then when the appropriations bill is passed, then the tacked-on language (our language) also passed. So what we have been able to do is get our language tacked onto the Appropriations Bill for Department of Homeland Security (DHS) in the US House of Representatives.
Unfortunately, the Appropriations Committee in the Senate (both Republicans and Democrats) have agreed, unanimously, that they are not going to “legislate through appropriations” and are not going to allow any enabling language onto the Senate versions of the Appropriations Bills.
The Senate Appropriations Committee passed its version of the Homeland Security measure on June 21. The bill is silent on H-2B cap relief due to the agreement mentioned above, but it does include report language that states:
H–2B Visa Distribution. —The Committee is concerned that the current semiannual distribution of H–2B visas on April 1 and October 1 of each year unduly disadvantages employers that need H– 2B workers to begin work later in a semiannual period than other employers participating in that period. The Committee directs the Department, in consultation with the Department of Labor, to re- view options to ameliorate this problem consistent with the H–2B provisions of the Immigration and Nationality Act and to report to the Committee on these options not later than 120 days after the date of enactment of this act.
On June 29, the Senate Appropriations Committee passed its spending bill for the Departments of Health and Human Services, Labor and Education. The bill continues the provisions from last year's Omnibus Appropriations law related to the H-2B wage methodology and wage surveys, corresponding employment, the 3/4 guarantee, a 10-month season and staggered crossing for seafood workers.
The House Appropriations Committee approved its version of the legislation on July 11. That bill includes only the provision related to the staggered crossing of seafood workers.
Both chambers need to pass their final appropriations bills, work to iron out the differences between the bills in conference and then pass final Homeland Security and Health and Human Services, Labor and Education appropriations bill either as stand-alone bills or in combination with other appropriations bills.
At any step of the way any of these amendments could be stripped out completely, amended to different language as a compromise or could live as currently drafted in the final bill.
So those who advocate and educate for us with Congress have an uphill battle to complete the next several steps in this process. When there is specific assistance needed for employers to step up to the plate and speak with your Senators and Representatives, it is extremely important that all of you, your suppliers, your committees take action. Keep your powder dry for now in regards to the Senate and any additional work with the House.
The President would then need to sign the final bill into law for it to take effect.
Congress is working to pass all of its appropriations bills prior to the start of Fiscal 2019 on October 1, but this deadline is often missed, requiring Congress to pass one or more short-term temporary funding measures called a continuing resolution (or CR). We will keep you updated.
We have no idea if this specific Returning Worker Amendment will survive exactly as currently drafted, in a different form or be stripped out of the final bill. We must all work even harder to make sure it lives as currently written.
We may not know if it will become law until October 1, or if there is a CR, until a later date in the fiscal year.