|H-2B Visa Cap Reached for Fiscal Year
2004 - Visas for New Workers Put on Hold
A recent decision
by the U.S. Citizenship and Immigration Services (USCIS) could have serious
implications for employers using alien workers at racetracks, horse shows,
fairs and similar non-agricultural exhibitions. These workers are generally
admitted to the US as H-2B temporary, non-immigrant workers.
USCIS has announced that it has received enough petitions to meet this
year’s congressionally-mandated cap of 66,000 new H-2B workers and
will not accept any more petitions for H-2B visas for the current 2004
fiscal year, which ends October 1, 2004. This puts the H-2B program for
all new such workers, including those in the equine industry, into limbo
and could affect the admission of these valuable alien workers depending
on each employer’s situation and admission process.
H-2B Temporary Worker Programs
The H-2B worker program is limited to “temporary service or labor
if unemployed persons capable of performing such service or labor cannot
be found in this country.” H-2B visas are used in many diverse industries.
Since 1990 there has been a Congressionally-mandated cap or upper limit
on the number of these visas that can be issued annually, but it has apparently
not been reached or not enforced. It will be this year. A new allotment
of H-2B visas will be available on October 1, 2004 for the 2005 fiscal
We understand that H-2B workers are used throughout the horse industry
in non-agricultural jobs. In the racing industry individual trainers and
state horsemen’s associations have organized, on-going programs
to employ and bring aliens into the country to work on the backstretch
under what might be termed H-2B groom visa programs. These programs have
worked fairly well, although they can be expensive and the application
process is burdensome.
These various programs could be affected by the recent action of the
USCIS, depending on when the admission period ends, whether it involves
new workers or the extension of existing H-2B visas and other factors
for particular workers. But any individual or organization seeking H-2B
visas for their workers should be aware of the USCIS decision and review
how it might affect their continued use of aliens.
The USCIS has stated that it will use the following procedure for the
remainder of FY 2004 (through October 1, 2004):
- USCIS will process all petitions received by March 9, 2004.
- USCIS will return all petitions subject to the annual cap (along
with the filing fee and, if applicable, the premium processing fee)
that are filed after March 9, 2004.
- Petitioners may re-submit or file new petitions when they have received
labor certification approval for work to start on or after October 1,
The cap does not affect petitions for current H-2B workers since they
do not count towards the congressionally-mandated H-2B cap. Therefore,
the USCIS will continue to process petitions filed to:
- Extend the stay of a current H-2B worker in the United States.
- Change the terms of employment for current H-2B workers.
- Allow current H-2B workers to change or add employers.
A legislative solution to the cap problem is necessary and is being
sought by various business sectors. Senator Ted Kennedy (D-MA) and others
are expected to introduce legislation to raise the 66,000 cap currently
Broader Immigration Reform Needed
This problem is just a part of the broader need for immigration reform,
both agricultural and non-agricultural. The AHC is working with a coalition
of non-agricultural employers working to change the broader alien worker
provisions. This group, called the Essential Worker Immigration Coalition
(EWIC), is working on reform of H-2B programs. The changes proposed by
EWIC are important to the horse industry. They include:
This legislation would benefit the non-agricultural segment of the horse
industry and is part of the broader effort to pass immigration reform
legislation, a difficult task in an election year.
- Year-round visas.
- Changes to the adjustment of status provisions.
- An increase in the numbers of temporary worker visas to 175,000.