WHAT IS AN H2B VISA?WHAT THE HELL IS A SUPPLEMENTAL VISA?
When I started working with Temporary Seasonal Visas for the Mobile Entertainment Industry the H2B visa did not even exist.
It came into existence in 1986 as part of the Immigration Reform and Control Act (IRCA) of 1986, signed into law by President Ronald Reagan on November 6, 1986. Nine years after I started filing for artists and support persons for the mobile entertainment business (circus).
There is no language in the bill that authorizes the H2B visa, it was simply split off from the H agricultural visa, and the various regulatory agents interpreted the intent of Congress, assumed authority of a program that was not actually authorized by Congress, and has been running with this Fraud for nearly 40 years.
Over time, I have been able to work with the DOL to create the special procedures that we operate under in the mobile entertainment business. The H2B visa, as it was split off from the H visa for temporary, seasonal, agricultural workers (now classified as H2A) is classified as a visa for temporary, seasonal, non-agricultural workers who maintain a residence in their home country that they do not intend to abandon.
Originally there was no cap on the H2B visa, but in negotiations between Congress, the George W. Bush Administration and the Labor Unions, the H1B visa was defined and capped at 65,000 per fiscal year and the totally unrelated visa H2B visa, inexplicably, was capped at 66,000 visas per fiscal year.
Once again, what is the fiscal year? A fiscal year for a business is the year that they use for filing their tax returns – typically January 1 to December 31 each year – but can be a different 12-month period. For the Federal Government the Fiscal Year 2025 (FY25) starts on October 1, 2024 and ends on September 30, 2025. The Administration presents a budget (a suggestion on where they want to spend money), the Congress responds with their “Budget†and all of this means diddly squat. Just part of the Political Theatre.
What is important are the appropriations bills, that are supposed to be passed and signed into law on or before September 30th each year for the next fiscal year, and when these bills are not passed – then that is when we hear about a “Government Shut-Down†where the D’s and the R’s all point fingers at each other and the media says it is the fault of the R’s.
To avoid shutting down the Government and also avoid making any decisions at all, Congress often passes what is known as a CR or Continuing Resolution that says – we will continue with the current authorization with or without specific changes until some date in the near future.
OK. I have drifted. The artificial statutory cap of 66,00 visas was put into effect in 1992, but did not have any real effect until about 2006. (I am not going to look up the exact date). This is when there were applications for more than 66,000 visas as more and more employers were struggling to find workers who wanted to work temporary seasonal jobs.
At that point in time, a solution to the problem was provided to Congress. The returning worker exemption, saying that any worker who had entered the USA with an H-2B visa in any of the 3 fiscal years, completed their contract, gone home would not be counted under the statutory cap.
Logical. Reward the workers and employers who follow the rules.
The Labor Unions and the far-left Democrats screamed foul, because the workers came into the USA and could only work for the employer named on the visa, they were “slavesâ€.
The various far right anti-immigrant groups, and far-right Republicans also screamed foul, because they said that this opened up the program to 264,000 workers and these workers would enter the USA taking jobs from US Workers and lowering salaries for US Workers.
Both the far left and far right were and continue to be WRONG but just because they are WRONG does not mean they did not win that fight.
The concept of the Returning Worker Exemption was tainted and for over a decade became a nasty word with both political parties. The economy went up and down, the need for H2B workers went up and down, the cap hit, the cap didn’t hit, the Returning Worker Exemption became law for a couple of seasons, and then died.
Somewhere in that mix, Congress decided to split the allocation of the 66,000 annual H2B visas in half – 33,000 for employment starting in the first half of the fiscal year (October 1 to March 30) and 33,000 in the second half of the fiscal year (April 1 to September 30).
Are you still with me?
This was supposed to be a short and sweet email – well the road to Hell is paved with Good Intentions, and here we go direct to Hades. As it was difficult to overcome the taint of the Returning Worker Exemption, and looking at what was happening around the world – a couple of the directors of the Seasonal Employment Alliance – contracted with a “think tank†to study the effect of legal immigration vs illegal immigration.
The study documented that for every legal H2A or H2B visa issued for Mexican Male Workers over a substantial period of time, the number of illegal workers in the same demographic, dropped by 1.04.
The study also stated that if H2B visas were promoted for countries Targeted for Economic Development (TED) it would be expected that the irregular immigration (politically correct term that replaced illegal immigration) would also decrease by the same general factor. And that the funds sent home by the workers would act as an economic stimulus in the home community further reducing the need (on an economic basis) for irregular immigration.
This study was used by the Seasonal Employment Alliance with members of Congress and the Obama Administration, and Congress authorized the administration to issue “Supplemental Visas†ie: Visas in addition to the statutory allotment, that could be released if the Department of Labor and the Department of Homeland Security Determined that this was in the best interests of the USA.
The current language is that the administration “may†release the visas. There is nothing that says they must release visas, nor the timing of the visa release, nor the number of visas to be released. All very important factors, that have been subject to intense efforts by the Seasonal Employment Alliance and the other active H2B advocacy groups to amend.
Supplemental H2B visas are visas issued in addition to the 33,000 that are part of the statutory (in the law) visas for each half of the fiscal year.
The initial 33,000 visas authorized by USDHS are UR or unrestricted visas. Meaning they are open to any citizen of any country that is authorized to participated in the H2B program.
The supplemental visas are limited to a certain number of workers who are considered RW or Returning Workers, workers who were issued an H2B visa in a US Consulate abroad in any of the three prior fiscal years.
And a certain number of TED workers, meaning workers who are from Targeted Economic Development Countries. The countries who are chosen has changed from year to year, from NCA – Northern Central America or Honduras, El Salvador, Guatemala or Haiti, to FY24 Honduras, El Salvador, Guatemala, Haiti, Costa Rica, Columbia or Ecuador.
JKJ Workforce has been active in building relationships with government agencies, private agencies and religious groups in these countries to fine-tune the recruitment and processing of workers from ALL of these countries.
As a founding Director of the Seasonal Employment Alliance I have been involved in the negotiations on the Supplemental H-2B visa release for FY25.
On the first Wednesday of the month, this month it will be next Wednesday August 8th, 2024 I host a Zoom Meeting open to all of our clients. Next Wednesday at 12 noon CENTRAL TIME click here to log on:
Join the Conversation – Humpday Zoom
This next week I will speak about the FY25 Supplemental Visa Release as well as the current situation regarding (semi)permanent cap relief.
I am always available for strategy sessions for YOUR COMPANY. All you need to do is request a strategy session with Mr. J from your primary or secondary case manager. We will reach out to you, find a convenient time and set up a zoom call. These zoom calls with you and your key people, me and my key people are a great way for you to educate us about your specific company and to allow me to work with you on strategies for your company and to answer your questions. Look forward to our strategy session!!!! James
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