An annual cap of 66,000 such visas, 33,000 for summer and an equal number for winter, was initially set by congress in 1990. In 2005, under the Save Our Small and Seasonal Business Act, Congress exempted these returning workers from the 1990 legislation.
That exemption expired on Sept. 30, 2007 and has yet to be renewed. Under current law, the summer cap was reached in January. Without an extension of the returning worker exemption, many seasonal employers claim they will not be able to hire H-2B visa holders until the beginning of the next fiscal year on this Oct. 1 –too late to meet their employee requirements for the season ahead.
In fiscal 2007, an estimated 250,000 employees participated in the H-2B program. They worked at restaurants, resorts, hotels and other seasonal businesses, such as nurseries and landscaping and food processing companies.
According to the Cape Cod, MA Chamber of Commerce, employers there will receive just 15 H-2B visa holders in contrast to the 5,000 that were requested. The chamber says the need for imported seasonal labor is especially acute because of Cape Cod's lack of affordable workforce housing and its aging population, which also limits the seasonal labor pool.
Restaurants on Mackinac Island, MI, face similar understaffing this season. So do restaurants and inns on Block Island off the coast of Rhode Island. Representatives of businesses in both places have said that college students, once relied on to fill the gap, no longer want jobs dishwashing, bussing tables and cleaning.
Business owners looking to hire under the H-2B visa program must prove that they have made an extensive 60-day effort to hire American workers. The effort has to be certified by state employment agencies. Because these are returning workers, their past and prospective employers have already trained many of them for the vacant positions.
According to a recent Small Business Economic Trends Report from the National Federation of Independent Business, 20% of small businesses report that they have unfilled job openings, and 12% say the availability of qualified labor is their biggest business problem.
Legislation has been introduced in both houses of Congress to lift the H-2B visa limit. S. 988, introduced by senators Barbara Mikulski, Democrat of Maryland, and John Warner, Republican of Virginia, calls for a five-year extension of the Save our Small and Seasonal Business Act. H.R. 1843, introduced by representatives Marilyn Musgrave, Republican of Colorado, and Wayne Gilchrest, Republican of Maryland, calls for a permanent exemption.
While the exemptions have widespread bipartisan support, many legislators are holding up a vote in an effort to win support for a comprehensive overhaul of immigration. "The H-2B visa program is being held hostage," says Rep. Bill Delahunt, a Democrat who represents Cape Cod.
"In a time when so many companies are circumventing the system and using illegal employees, there should be overwhelming support in Congress for a program that allows companies to hire legal laborers," says Michael Glah, president of International Personnel Resources Inc., a West Chester, PA-based company that specializes in processing H-2B visas. "This is not an immigration issue; it is a workforce issue."
The National Restaurant Association agrees. As co-chair of the H-2B Workforce Coalition, the association is actively involved in lobbying to make the exemption permanent or at least extend the provision.
"This vital program should not be a political pawn," says John Gay, SVP of government affairs and public policy for the association. "Congress must move past gridlock and provide seasonal workers to the employers that desperately need them."
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