H2B Relief Legislation
Posted May 13, 2005
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Note : At the time this article was written, the H.R. 1268 Bill had passed the U.S. House and Senate. It has now been signed by the President, which makes it law. Please see our May 12, 2005 NewsFlash for details.
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The U.S. House of Representatives approved emergency legislation known as the "Save Our Small and Seasonal Business Act of 2005." This provision was added in as a supplement to an unrelated spending bill known as H.R. 1268. This is not yet law, but is expected to be sent to the President for signature once it is approved by the Senate. [Please refer to our article How a Bill Becomes a Law, available on MurthyDotCom.] Our May 6, 2005 MurthyBulletin article, Bill May Provide Limited Relief for Retrogression and H2Bs, carries details on the other immigration provisions in this Bill. It is also available on MurthyDotCom.
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The H2B provisions are designed to eliminate problems for employers of certain short-term and seasonal employees that arose when the 66,000 annual cap or numerical limit on the number of H2B workers was reached in Fiscal Years 2005 and 2004. (This should not be confused with the H1B category 65,000 cap for temporary professional workers, which also operates under a numerical limitation or "cap"). There had previously been some relief in this category for a very limited group of H2B employers involved in fish roe processing. This is discussed in our Aug 13, 2004 MurthyBulletin article, President Signs Bill Giving Limited H2B Relief.
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The emergency legislation, if enacted, essentially addresses the problem of the H2B cap by changing the way the workers are counted against the cap. Similar to the H1B cap procedure, a worker is not counted against the cap each time a case is filed for him / her. The law sets out criteria to determine if a "returning worker" is to be counted against the cap.
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Numerical Limitations
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The Bill proposes the creation of an exemption from the H2B cap for workers previously the beneficiaries of H2B cases and counted against the cap during any one of the three years preceding the filing of a new H2B case. These individuals would be classified as "returning workers." There are procedures for providing verification of the eligibility to be considered a returning worker. The U.S. Department of State (DOS) will determine eligibility for those workers who are abroad and must seek visas to reenter the U.S. If these individuals are visa exempt or trying to change to H2B status from within the United States, the Department of Homeland Security (DHS) will make the decision.
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Effective Date
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The numerical limitations provisions are to be considered as if they had been enacted on October 1, 2004 and are valid through October 1, 2006. In this way, they cover Fiscal Years 2005 and 2006. Fiscal Year (FY) 2005 ends on September 30, 2005. The proposed law would require the DHS to start accepting these cases no later than 14 days after the enactment of the law. Enactment generally occurs when the President signs the bill into law.
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New Fraud Prevention Fee
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The law would require a new fee of $150 for fraud prevention and detection. This fee, to be paid by the employers, would be effective 14 days after enactment of the legislation and would apply to filings requesting a start date after FY2005.
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Fines / Sanctions
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The law would allow DHS to sanction employers who have a "substantial failure" to meet the terms of the H2B petition or otherwise provide the status to the employee. The fine would also apply to employers who make willful misrepresentations in the H2B petitions. The fines could range from administrative remedies to potential monetary fines up to $10,000 per violation. The highest fines would be reserved for employers engaging in willful failures that involve harm to U.S. workers. The DHS could delegate the authority to impose fines to the U.S. Department of Labor (DOL). The DHS would also be permitted to deny an employer's petitions for at least one year, but no more than five years, as an additional or alternate sanction. The sanctions provisions would be effective as of October 1, 2005 if this law is enacted and would not have an expiration date.
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H2B Allocation throughout the Year
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If enacted, the law would provide for a system designed to spread the availability of the H2B cap numbers out throughout the year. This is aimed at problems that have arisen in certain industries with seasonal needs later in the fiscal year. These employers, who were not eligible to file in the beginning of the fiscal year, would be unfairly shortchanged because different seasonal demands would cause other employers to use all the numbers earlier in the fiscal year, leaving none for certain other occupations or other parts of the country. To address this, the 66,000 H2B cap numbers would be monitored so that no more than half of them could be used during the first half of the fiscal year. Since more than half of the available H2B numbers were used in the first half of FY2005, this provision would, as a matter of practical application, become effective FY2006 and would not have an expiration date.
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Reports to be Filed
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The law sets up procedures for various reports to be filed by DOS and DHS to the House and Senate Judiciary Committees with data on items such as occupations of H2B workers, rates of pay, numbers terminated and the like.
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Conclusion
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This legislation was introduced by Maryland Senator Barbara Mikulski. The H2B program is particularly tied to "picking" crab meat from Maryland's famous Blue Crab. This work of picking the meat from crabs for commercial sale is a labor-intensive enterprise. The Maryland Blue Crab is responsible annually for $400 million dollars in revenue in Maryland, as well as a great deal of culinary pleasure throughout the United States, since the crabs are shipped all over. The passage of this legislation is seen as both good immigration and economic policy.

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