The Consolidated Appropriations Act of 2017, signed into law on May 5, 2017, contains provisions attempting to fix the problem of employers being left without sufficient workers due to the cap on the number of available H-2B seasonal non-agricultural visas. As noted in an earlier post, the 33,000 cap for summer season H-2B visas was reached in early March, leaving Maine’s seasonal employers whose applications were not already filed by then high and dry.
Sen. Angus King had previously introduced a bill, which Sen. Susan Collins cosponsored, that would have exempted “returning workers” – those who had come to the U.S. on an H-2B previously and would be returning to work for the same employer – from the H-2B visa cap. That approach was not adopted in the spending bill. The American Immigration Lawyers Association (AILA) summarized the relief enacted:
“While this bill does not include the returning worker exemption, it includes a provision that could allow DHS to increase the H-2B cap and thereby provide limited relief to businesses using the H-2B program. The bill allows DHS, in consultation with DOL, to increase the H-2B cap by not more than the highest number of H–2B nonimmigrants who participated in the returning worker program in any year in which returning workers were exempt from such numerical limitation. To trigger this increase, however, the two agencies must determine there are not sufficient U.S. workers able to fill the available positions. Although the total H-2B visa issuance number for FY2016 is unavailable for comparison, the highest number of H-2B workers admitted to the US when the H-2B returning worker exemption was in place (FY2005-7) likely refers to the number admitted in FY2007, 154,895….. (The bill also) changes the definition of ‘temporary need’ from a fixed 9 month period to a period of ‘one year or less,’ which DOL has generally capped at 10 months.”
Unfortunately, the bill includes new requirements that may put any additional H-2B visas out of reach, including compelling many employers to begin their summer hiring recruitment process all over again, and making all employers attest that they will suffer irreparable, permanent harm without the planned H-2B staff.
In addition, the process the Department of Homeland Security (DHS) and Department of Labor (DOL) must follow is unlikely to result in Maine’s seasonal employers getting visas for the workers they need in time for the start of Maine’s summer 2017 tourist season.