Save Small Business Offers H-2B Summary Prior to Rulemaking

H-2B users are encouraged to read through the summary and upcoming rulemaking to successfully bring in H-2B workers for 2005 and 2006.

Published May 16, 2005

Save Small Business, a grassroots organization focused on H-2B reform, released an announcement on Friday acknowledging that rulemaking for the recently passed Save Our Small & Seasonal Business Act of 2005 is expected to be made sometime this week. The organization, headed by H-2B proponents Hank Lavery and Don Mooers, says it expects the guidance for the new law to "simply and effectively carry out the plain language of the statute."

Lavery and Mooers urge H-2B users to read the summary of the statute, below, to find out what to expect in the upcoming guidance to be issued by the U.S. Citizenship & Immigration Service (USCIS). They also note that if H-2B users still have questions after reading the summary, to read the USCIS guidance for clarification when it is issued or to consult with counsel.

"At this point, it is likely that new H-2B petitions will be accepted by USCIS on or around May 25, which is 14 calendar days after the President signed the SOSaSBA into law," Lavery and Mooers said in their announcement. "If you have a labor certification approved by the U.S. Department of Labor, then this labor certification should be valid until the listed expiration date. If you do not have a valid labor certification for the 2005 season, you may want to think about filing the labor certification as quickly as possible."

For more information on how to file for labor certification, H-2B users can call their state department of labor or consult with an immigration attorney or other providers. Normal H-2B rules and processes should apply.

Lawn & Landscape will bring additional information on the USCIS rulemaking as soon as it becomes available.

The Save Our Small and Seasonal Businesses Act
Summary of Key Provisions


    Hank Lavery and Don Mooers of Save Small Business say these are the details H-2B users need to know about visas for the remainder of 2005:
     
    1. Users will be able to file new H-2B visa petitions with the Immigration Service starting "not more than 14 days" after the enactment of this Bill (the President's signature). Therefore, since the President signed the Bill on May 11, users could begin filing H-2B petitions with the Immigration Service on May 25. There is no mention of "business days." Since time is of the essence for small and seasonal businesses and the communities they serve, it is hoped that actual days, including weekends, will be counted toward the 14 days.

    2.  Any worker who has had an H-2B visa in any one of the prior three years is exempt from the H-2B cap. The employer/petitioner MUST CERTIFY that the employee is a repeat H-2B worker. "Certification" is not defined in the Bill, but it is expected that the Department of Homeland Security (DHS) certification could be as simple as an attestation listing the worker as a "repeat H-2B worker."

    3. There will be additional space for new H-2B workers based on an estimate by the Immigration Service on the number of repeat H-2B workers already approved and in the country this year. USCIS will provide that number, and we expect that number, which is expected to be more than 25,000.

    4. H-2B users can expect additional instructions on certification, filing date, special filing requirements, etc. to come out from USCIS as soon as the bill is enacted. This process is likely to be kept very simple.

    5. The Save Our Small and Seasonal Businesses Act applies only to fiscal years 2005 and 2006. Congress will need to act again next year for relief for future years.

    6. Starting in fiscal year 2006 (H-2B visa petitions set to start on Oct. 1, 2005 or later) will be the following:
    - Split of 33,000 H-2B visas for the first half of the year (H-2Bs needed starting Oct. 1, 2005 to March 31, 2006), and 33,000 for the second half of the year (start date of April 1, 2006 to Sept. 30, 2006). This split does not apply to repeat H-2B workers.
    - New "anti-fraud" fee of $150 per employer, per petition.
    - Imposition of new sanctions on employers for fraud and misrepresentation.
    - New reporting requirements by DHS to Congress.

    Remember: Consult with legal counsel or other advisors upon whom you normally rely on H-2B matters to decide whether and how you will benefit under the Save Our Small and Seasonal Businesses Act.

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