First H-2B Cap Met

U.S. Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of petitions by Nov. 28 to reach the congressionally mandated H-2B cap for the first six months of Fiscal Year 2007.

“Reaching the semi-annual cap of 33,000 in November underscores the need for a permanent solution to the H-2B cap,” stresses John Farner, American Nursery and Landscape Association’s director of legislative relations. “With the cap being reached earlier and earlier each year, it is evident that employers, who may not have used the H-2B program in the past, are in need of seasonal temporary employees; these are jobs that Americans simply won’t do.”

USCIS marked Nov. 28 as the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2007. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of 2007. USCIS will continue to accept petitions for new H-2B workers seeking employment start dates on or after April 1 that arrive after the "final receipt date" only if such petitions are supported by a valid temporary labor certification.

For all petitions that are subject to the cap and were received on Nov. 28, USCIS will apply a computer-generated random selection process. This process will select the number of petitions needed to meet the cap. USCIS will reject all cap-subject petitions not randomly selected. USCIS also will reject petitions for new H-2B workers seeking employment start dates prior to April 1 that arrived after Nov. 28.

Petitions for workers who are currently in H-2B status and returning H-2B workers do not count towards the congressionally mandated bi-annual H-2B cap, thanks to legislation Congress enacted earlier this year. In order to qualify as a “returning worker,” the worker must have counted against the H-2B numerical cap between Oct. 1, 2003, and Sept. 30, 2006. Any worker not certified as a “returning worker” is subject to the numerical limitations for the relevant fiscal year. Petitions received after the “final receipt date” that contain a combination of “returning workers” and workers subject to the H-2B cap will be rejected with respect to non-returning workers. Petitioning employers will receive partial approvals for those aliens who qualify as “returning workers” if otherwise approvable.

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 and extend their stay;

• Allow current H-2B workers to change or add employers and extend their stay; or

• Request eligible H-2B “returning workers.”

“With a new political landscape in Congress, the chances of comprehensive immigration reform legislation passing Congress are greater than ever,” Farner adds.  “The ANLA will continue working with our legislative champions and our industry partners in ensuring that the H-2B program cap is meaningfully addressed within the legislation.”

Because the cap was hit so early this year, Tom Delaney, director of government affairs for the Professional Landcare Network, says the second 33,000 cap is expected to be reached in early April 2007 due to the high number of contractors who will now be re-filing for the second half to try to beat those who file later in the year.

Unfortunately, the news of caps being reached and contractors not getting their workers or getting their workers late is repetitive and, therefore, expected, Delaney says. "Landscape contractors should be used to this by now," he says. "This is why it is so important to get legislation to make the returning worker exception permanent. This is something that can be fixed if everyone steps up and does their part to contact their members of Congress in 2007 and push for a change."

For more information about the H-2B program, visit www.uscis.gov or call the National Customer Service Center at 800/375-5283.