H-2B Background Information

H-2B Cap Exemption - The "Save Our Small and Seasonal Businesses Act of 2007" (S 988), extends for five years a returning seasonal worker provision under the H-2B visa program. This provision exempts returning workers from being counted against the program’s cap of 66,000 annual visas. The House version (HR 1843) makes permanent the returning worker exemption provision. The original law creating this exemption was signed into law by President Bush in May of 2005.

The H-2B visa program allows guest workers to temporarily work in the United States to fill nonagricultural jobs in which American workers are in short supply. H-2B allows hiring foreign workers, with valid visas, for up to ten months within the federal fiscal year. Rules require businesses to advertise job openings to U.S. citizens, and companies must seek to fill these positions with U.S. workers before they are opened up to H-2B visa holders.

The 2005 modifications to the H-2B program exempted returning seasonal workers (who used an H-2B visa within the last three years and returned to their home countries once the visa expired) from counting against the national cap of 66,000 visas - 33,000 in each half of the fiscal year. However, the exemption from the cap is set to expire on September 30, 2007.

The 33,000 cap is typically met within the first months of each half of the year which can cause employee availability problems for many landscape businesses. The returning worker exemption is estimated to approximately quadruple the number of workers available under the H-2B program.

It is not just the landscape industry that is impacted by H-2B guest workers. The hospitality and tourism industries also rely heavily on H-2B workers as does the restaurant industry, the cannery and seafood processing industries, pool management companies, country clubs, the horse training and breeding industry, among others.

PLANET, ANLA and other interested parties are aggressively working this issue. Their strategy is to obtain as many Senate and House co-sponsors as possible for the respective bills to help pave the way for the provision to be added as an amendment to an appropriations bill or other measure.

The original cap exemption language was added to an Iraq spending bill on a 94-6 Senate vote in 2005, and then retained in a conference bill that passed Congress the following month. This past broad-based support can no longer be assumed following this year’s long drawn out and contentious immigration reform debate.

Meanwhile, employers are being placed under increased scrutiny by government agencies to verify employee documentation. New DHS rules set to go into effect this fall will require careful examination of employee social security numbers, as an example, with failure to comply possibly resulting in significant fines or even criminal sanctions.

Return to: "Congressional Activity on Seasonal Workers"