Save Our Small and Seasonal Businesses Act of 2005-H2B Visa Relief

The H-2B visa enables US businesses and agents to fill temporary needs for nonimmigrant workers. The "Save Our Small Businesses and Seasonal Businesses Act of 2005" that was part of the Emergency Supplemental Appropriations Package (H.R. 1268) signed into law by President Bush on May 11, 2005 restructures the way these nonimmigrant workers are counted against the annual 66,000 numerical cap on H-1B visa. This legislation is a much needed relief for employers who hire temporary nonimmigrant seasonal works in light of the fact that the numerical cap for H-2B visas was reached in both the 2004 and 2005 fiscal years. This new emergency legislation addresses the problem of the H2B cap by introducing a similar procedure to that of the H-1B cap to count nonimmigrant workers against the cap. As per the new regulations, a "returning worker" is not counted against the cap each time a case is filed for him or her.

Numerical Limitations on H-2B Workers

The New legislation provides for an exemption from the numerical cap for workers who have already been counted toward the H-2B cap during any 1 of the previous 3 fiscal years. Such workers will be considered a "returning workers." A petition for a returning working must include the returning worker's full name and certification to the Department of Homeland Security (DHS) that the person is a returning worker. The H-2B visa or grant of nonimmigrant status for a returning worker will only be approved if Department of State (DOS) confirms that the individual is a returning worker. For workers that are visa exempt or seeking to change to H-2B status, DHS will handle the confirmation.

This exemption takes effect as if enacted on October 1, 2004 and, the exemption expires on October 1, 2006. Thus, fiscal years 2005 and 2006 are covered. The legislation directs DHS to begin accepting and processing H-2B petitions no later than 14 days after the date of enactment (date the bill is signed into law by the President). It also directs DHS to allocate additional H-2B numbers under the FY2005 cap based on statistical estimates and projections of "returning worker" derived from DOS data. This would indicate that additional cap-subject numbers for Fiscal Year 2005 will be freed up.

Fraud Prevention and Detection Fee

The legislation imposes a $150 fraud prevention and detection fee on employers filing a H-2B petition. This fee takes effect 14 days after the date of enactment and applies to filings for a fiscal year after FY2005.

Sanctions

The law also allows the DHS, after notice and an opportunity for a hearing, to fine employers who exhibit a "substantial failure" to meet any conditions of the H-2B petition or otherwise provide such status to the H-2B employee. This fine may also be imposed for a "willful misrepresentation" of a material fact in such H-2B petitions by employers.

The fines imposed may be administrative remedies or other remedies under law, including civil monetary penalties in an amount not to exceed $10,000.00 per violation, as the DHS deems appropriate. In determining the penalty levels, the highest are reserved for willful failures to meet any conditions of the petition that involve harm to U.S. workers. Employers may also be subject to denial of H-2B petitions and immigrant petitions filed for a period of at least one year but not more than five years as an additional penalty.

Allocation of H-2B Visas or H-2B Nonimmigrant Status During a Fiscal Year

The law also reallocates the 66,000 H-2B numerical limits so that no more than 33,000 numbers can be used during the first 6 months of the fiscal year.