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H-2B Reform Included In Appropriations Law - FAQs

by Gregory Siskind

Congress included in the new spending bill provisions designed to improve the H-2B program. The changes will make more H-2B visas available and also change the way they are allocated to make sure that industries on different schedules have equal access to H-2Bs.

How will the new law change the way H-2Bs are allocated each year?

First, employers that need H-2Bs in the second half of the fiscal year have been out of luck recently as winter ski resorts on the west coast have gobbled up available visas early in the fiscal year leaving little for the summer resorts on the east coast, hockey teams needing players, the seafood industry in several states, and various other employers across the country that canít use H-2B workers during the October through March period.

The new law now allocates half of the 66,000 annual H-2B cap for applications for people entering the US in the first half of the fiscal year and half for those entering in the second half.

Does the new law increase the H-2B cap?

Not directly. But it will still have the effect of increasing the cap. The new law will increase the overall number of H-2B visa holders in the US by no longer counting H-2B workers toward the cap if such workers have been counted against the H-2B cap in any one of three fiscal years prior to the year of the start date of the H-2B applications. This is expected to increase substantially the number of H-2B visas available each year since many H-2B seasonal workers have been counted multiple times against the cap.

When will the new law go into affect?

The law regarding not counting previously counted workers against the cap goes into affect for this fiscal year as if the law was enacted on October 1, 2004.

Is the cap exemption provision permanent?

No. It expires on October 1, 2006 and Congress will need to extend it next year.

When can I file cases under the cap exemption provision?

USCIS must begin accepting cases within two weeks after the President signs the law. DHS will also be able to accept applications based on statistical estimates on how many people they think will become cap exempt under the new law since the cap was hit several months ago for this fiscal year.

Are there new fees?

Of course. The fraud detection and prevention fee recently added to H-1B and L-1 cases will now apply in H-2B cases, except the amount will be $150.

When will the new fee go into effect?

It will go into effect fourteen days after the President signs the new law so the fees will need to be included with all new cases filed under this law. About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


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