Visas & Advice Detail
US seasonal visas
Many people do not realise that a seasonal work visa is not solely for people who want to enter America to plant crops in the spring or help during the autumn harvest
Immigration attorney Karen Caco paints a bigger picture revealing the importance of seasonal workers to the US economy. Just to ensure that we are all on the same page, we should first look at the definition of a 'seasonal worker'. In immigration terms, 'seasonal' can refer to the agricultural season, and the growing or harvesting seasons – wherein employers require temporary workers to assist with the harvesting or planting of crops. However, it can also refer to non-agricultural workers.
On the farm visas
The type of visa used for the agricultural industry is the H-2A visa. This non-immigrant visa (as opposed to a green card, or immigrant visa) allows employers to bring in foreign nationals to perform agricultural jobs that are necessary but of a seasonal nature. These visas are issued for less than one year at a time and spouses and children are eligible for dependent status and can accompany the main worker while they are in the US. If an employer wishes to hire H-2A workers, they must first apply for Foreign Agricultural Labour Certification, which means an application is sent to the Department of Labour and approval takes place at the state level. Part of this Labour Certification is that the employer must show that they can provide housing to the workers, and the housing itself is examined. After a Labour Certification is approved for H-2A workers, an application is sent to the United States Citizenship and Immigration Service (USCIS) to apply for the workers themselves. Presuming this application is approved, the workers go to the closest US Consulate or Embassy (often in their home country) for visa issuance.
More seasons
Another type of 'seasonal' worker falls into the H2B visa category. These work visas are used in every industry other than agriculture that has increased staffing needs at certain times of the year. They are often used in the hotel or tourism industry. A 'season', for H-2B purposes, often refers to the tourist season in specific geographic areas when the need for workers increases. For example, in sunny Florida the season for H-2B visas typically encompasses November through to May when the influx of visitors to our warm climate makes it necessary for companies to hire additional workers to service the tourists. In contrast, the 'season' for Cape Cod or Martha's Vineyard for H-2B purposes is the summer and early autumn, while Vermont's tourist season is in the winter for those wishing to ski.
The H-2B visa is issued (like the H-2A) in increments of up to one year at a time and spouses and children are eligible for H-4 dependent status for the duration of the H-2B work visa. Often people who have H-2B visas will work in Florida during one 'season' and then move up north for another 'season'. They can do this for a maximum of three years and then must return to their home country and wait outside of the US for a specific time period before re-applying. The H-2B visa for new applicants has a yearly cap of 66,000 visas, which is split into 33,000 available positions on the 1st October of every year, with the remaining 33,000 available from 1st April.
Under the H-2B visa category US employers must, again, apply for a Labour Certification – which is similar to the H-2A Labour Certification except that employers need not provide housing. The Labour Certification is achieved by filing an application with the Department of Labour. It is first filed in the state where the job is located and then, once approved at the state level, it is forwarded directly to the US Department of Labour for approval at the federal level. Presuming approval at the federal level, the approved certification is sent to the attorney of record and an application for temporary workers may be filed at the appropriate USCIS Service Centre. H-2B applications may be submitted to USCIS using Premium Processing, which expedites an answer within 15 calendar days. There is an additional filing fee of $1,000 for this service.
The H-2B cap is, unfortunately, reached quickly every year, but this was especially the case in 2007 when the cap was hit in record time due to returning H-2B visa holders being counted as part of the 66,000 total visas instead of being designated as returning workers and exempt from the cap (as in years gone by). In fact, the second set of 33,000 visas (for 1st April – the second part of the fiscal year) were allocated, and the cap was hit by 3rd January 2008. An unexpected result of the standoff that took place in Congress over immigration reform last year has been a shortfall of H-2B visa numbers that has left business owners and HR managers scrambling to fill spots that were traditionally filled by H-2B workers. H-2B shortages have affected the tourism industry – and in fact all other industries that look to H-2B workers to fill temporarily increased staffing needs – badly. All over the United States businesses including hotels, country clubs and ski resorts, construction companies, and so on are struggling as a result of inaction from Congress. Until further visas are made available for these types of workers I am advising business clients to look to other visa options.
Alternatives
One of the visas that we look to is the H-1B visa. This non-immigrant visa is used by persons in 'specialty occupations' who have at least a Bachelor's Degree. This visa is also subject to a yearly cap, of 65,000 visas – unless the applicant has a US Master's Degree (in which case there is an additional 20,000 visas available) or they are working for an educational facility or non-profit organisation (in which case there is no cap that applies). However, the filing date for these applications is 1st April, and in 2007 this visa cap was hit on the first day with 150,000 H-1B applications being received at USCIS on that day.
In immigration terms we refer to this time of year as H-1B season, because our law firm – like many others – is frantically trying to finish all H-1B applications so that we can submit them for 1st April. In 2007, incidentally, when the USCIS received 150,000 H-1B applications for the 65,000 spots, they resorted to a lottery system and if the case was chosen, it was adjudicated. If it wasn't picked the person had to wait for a year or look at other options – which are few.
The J-1 visa is a category used for persons coming to participate in exchange visitor programmes in the United States and we often see J-1 visas used during seasons. There are also H-3 visas used for trainees other than medical or academic students. This visa has a duration period of up to two years and the trainee can only work in the field of their training programme for minimal hours.
As I write this article it is clear that the future for these temporary and seasonal visa categories is not great. Something needs to be done to allow increased numbers of temporary and seasonal workers that are the lifeblood of many industries. Unfortunately, with the failure of comprehensive immigration reform, visa categories like the H-2B and H-1B have been harmed. Immigration continues to be a hot topic – especially with elections coming up – and hopefully this will bring on significant immigration reform.
Karen Caco is an attorney at International Immigration Services
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