May 16, 2005
Implementation of H-2B Legislation

In a meeting between the agencies involved in implementation of the Save Our Small and Seasonal Businesses Act of 2005 (SOSSBA), industry groups (including AILA) and Congressional offices, the following information on implementation of the SOSSBA was provided:

USCIS and State Department have preliminarily evaluated the number of fiscal 2005 H-2B numbers that the new legislation makes available by exempting returning workers from the quota, and believes that approximately 35,000 numbers will be freed up. That count is still an approximation, and may not be the final number. Despite the significant number of cap numbers that would be made available, the agencies emphasized that employers should make use of the returning worker category where applicable in order not to needlessly throw cap numbers away.

USCIS indicated that it will be ready to start receiving H-2B petitions under the legislation on May 25, 2005, which is the 14 days after enactment designated in the statute. It will not designate a specific service for filing, but instead filing will be where it always has been: in the service center having jurisdiction over the place of employment. The agency expects to have a guidance memo out shortly.

To document that a beneficiary is a returning worker, USCIS will require only an attestation to that effect. Then, the beneficiary will need to prove that he held H-2B status within the past two years when he applies for a visa at a consulate or, if visa exempt, applies for entry into the United States. State Dept. has a database of those who its records show to be returning workers. If the individual is in the database, that fact will be sufficient proof of returning worker status. If he not in the database, he will need to prove his prior status.

There will be no specific form for the attestation.

USCIS and Labor Dept. indicated that already-approved temporary worker labor certifications will be accepted as long as the period of employment has not expired. They do not plan to issue a notice or guidance to that effect.

Regarding the legislation's division of the H-2B quota between the first and second half of the year, the agencies indicated that if the 33,000 for the first half is not fully used, they will roll the remaining numbers over to the second half of the year.

Posted on AILA InfoNet at Doc. No. 05051610 (May 16, 2005)