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 year.

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, 2004.

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.

Congressional Action Sought

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 in place.

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:

  • Year-round visas.
  • Changes to the adjustment of status provisions.
  • An increase in the numbers of temporary worker visas to 175,000.
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.
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