A Season without Seasonal Visas?

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It has been a frustrating and scary month for those operating seasonal businesses, with the club and hospitality industries particularly affected. With so many organizations in the club and hospitality industries relying on foreign nationals to work during busy months, the suspension of the H-2B seasonal visa program, and the aftereffects that continue, has sent shockwaves from coast to coast.

On March 4, 2015, because of a federal district court case in Florida, the U.S. Department of Labor (DOL) was forced to immediately suspend all aspects of H-2B visa processing. The reason for the suspension was that the court found that the DOL did not have legal authority to issue H-2B visa regulations (as it had been doing since 2008). In response to the court’s ruling, U.S. Citizenship & Immigration Services (USCIS), the other government agency involved in H-2B adjudication/processing, also suspended its processing of H-2B visa petitions as of March 4. Therefore, as of March 4, the H-2B visa process was completely and indefinitely suspended in the United States.

Almost two weeks went by without any word from the government about a potential solution. However, on March 16, USCIS and the DOL jointly announced that the agencies would announce an Interim Rule no later than April 30, 2015 to allow H-2B visa processing to continue. Then, late on March 16, the DOL filed an appeal to the Florida court ruling and asked the court to delay its forcing of the suspension of the H-2B visa program. The judge granted this request (through April 15) and, on March 17, USCIS announced that it would resume H-2B visa processing. The DOL followed and on March 19, H-2B visa processing nationwide resumed with both the DOL and USCIS. Importantly, though USCIS has not resumed Premium Processing for H-2B visa petitions, meaning that it is currently reviewing H-2B visa petitions in about one-two months rather than in 15 calendar days.

So where does the H-2B visa process go from here?

First, those in the club and hospitality industries that rely on H-2B visa employees are very hopeful that USCIS will resume Premium Processing very soon to allow the organizations to expedite the final step of the H-2B visa process. To date, USCIS has not made any comments regarding when Premium Processing will resume and continues to process H-2B visa petitions in about one-two months.

Second, the judge only granted the DOL’s request to not impose the H-2B processing suspension until April 15. With the Interim Rule from USCIS and the DOL not due out until April 30, there could be another H-2B visa processing suspension during the second half of April. We are hopeful that the court will grant an extension through the end of April to not adversely affect those that need seasonal visas in order to operate.

Third, all eyes will be on the DOL and USCIS to see what is contained in the Interim Rule that is promised no later than April 30. Significantly, the agencies are not reaching out to industries that use H-2B visas in large numbers, including the club and hospitality industries. This leads many to believe that the Interim Rule will look very similar to the H-2B visa regulations and rules that have been in place since 2008. If the Interim Rule is similar to the regulations that have been in place, it will disappoint many as the rules have caused so many issues, delays and lawsuits through the years. As the process is back up-and-running thanks to the DOL appeal, this would be a great time for the agencies to reach out to the industries that rely on H-2B visas, such as clubs, hospitality, ski resorts, landscaping, oil and gas, forestry, fishing, construction, etc. to learn about these industries’ needs and how to make the process best for all involved.

Finally, there are whispers that there may be new H-2B legislation introduced during the fall legislative session. A silver lining of the stress of the H-2B visa suspension is that the government learned, thanks to pressure put on Senators and House members serving districts that rely on H-2B visa workers, how important the H-2B visa system is to the United States. Without H-2B visas, so many integral jobs that Americans rely on would not be performed. As a result, our office is hearing that a bill may be introduced to finally implement new laws and regulations that do take into account the needs of the seasonal visa industries.

In summary, March 2015 has been a stressful one for those operating seasonal businesses. While it is clear that it will not be a season without seasonal visas, there are still many pieces of the H-2B visa process that need to be repaired and put back into place in the coming weeks and months. Please do not hesitate to contact us with any questions or for updates as we navigate the weeks and months ahead.

Pabian_KeithwKeith A. Pabian (@PabianLaw) is an immigration attorney at Pabian Law, LLC. He has developed a unique niche in representing organizations in the club and hospitality industries across the nation in visa and immigration matters. He can be reached at keith@pabianlaw.com or (617) 939-9444. This article was prepared for educational purposes only.

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