Labor Immigration Law

On July 30, the USCIS announced that it has reached the H-2B cap for the first half of the fiscal year 2009.  According to this announcement, July 29, 2008 is the “final receipt date” for H-2B petitions.  All petitions received after July 29, 2008 for H-2B with starting date of April 1, 2009 will be rejected.

USCIS updated the H-2B cap numbers as of July 21st.  As of that date, there have been 29,234 petitions counted towards the 33,000 cap for the first half of the fiscal year.  With the current rate, the H-2B cap is expected to be reached within a week or so.

USCIS has provided two recent updates on the numbers on the H-2B visa count.  The two recent updates are useful because it allows us to sample the rate at which H-2B visa numbers are being used.

The July 1 announcement stated that the H-2B count, as of July 1, stands at 17,305 for the first half of FY 2009.  The July 7 announcement stated that the H-2B count, as of July 7, stands at 20,390, an increase of nearly 3,000 over a period of less than a week. It should be noted that the period included the July 4th holiday, so it is safe to assume that the actual filing rate is somewhat higher.

The cap for the first half of FY 2009 is set at 33,000, so based on current demand at a rate of 3,000 visa petitions in 6 days, we anticipate that the remaining numbers will be exhausted some time in August.  This expectation assumes that the rate of 3,000 visa petitions per 6 days will not change.

The Department of Labor has released an interesting report regarding the number of PERM and H-2A/H-2B labor certifications.

For the period between October and December 2007, DOL received almost 20,000 PERM on-line submissions and slightly over 1,000 mail-in submissions. DOL completed work on 16,200 cases, of which 12,500 were certified (78% certification rate), 2,800 were denied (17%) and 800 were withdrawn (5%).

It is interesting to compare the approval rates for the Oct-Dec 2007 period with the historical certification rate since PERM started in March 2005. The historical overall certification rate is slightly above 78% which seems to indicate that the Oct-Dec 2007 certification rate was in line with historical averages.

Among other interesting findings in the report are the top five states of intended employment - California (23%), New York (10%), New Jersey (7%), Texas (7%) and Florida (6%). Few would be surprised that Indian nationals were the top nationality with 28% of all certified applications and computer software engineers were the top occupation with 17%.

In the H-2A/H-2B section of the report, it is worth noting that there was a significant increase in both the number of requested and certified labor certifications for both the agricultural and non-agricultural programs in FY07 compared to FY06. This seems to suggest that more employers are resorting to H-2 visas to obtain temporary labor. [See our recent post on H-2B cap.]

The relevant portion of the DOL report can be read here (PDF).

Cap Reached.  On January 03, 2008, the USCIS announced that it has received a sufficient number of petitions to reach the cap for the second half of 2008 fiscal year.  The USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008, that arrive after January 2, 2008.

H-2B Visa Background.  The H-2B visa is not as popular as its sibling, the H-1B, but it provides an avenue for many foreigners to come to the United States and engage in a seasonal non-agricultural employment.  Service industries such as hospitality, landscaping, construction and food processing are using this visa the most to assure their businesses are staffed appropriately during peak seasons.  By closing H-2B processing for 10 months, USCIS has shown that the demand for temporary workers is enormous and that inability of employers to sponsor legal workers will put them in a difficult position as to whether to hire illegal workers and risk fines or imprisonment or scale down business operations until at least October.