The H-2B visa program is used extensively in tourist locations to hire foreign workers for “the season” to do temporary nonagricultural work. There are 66,000 H-2B visas available annually – half for the summer season and half for the winter season. An exemption from the cap for “returning workers” was not renewed for fiscal year 2016. With no exemption and companies anticipating that the summer cap might be reached quickly, there was a 93% increase in the number of Labor Certifications filed with the Department of Labor for H-2B workers during the first week of January 2017. The summer season cap was reached on March 13. This was unprecedented. Companies that rely heavily on seasonal workers to bolster full-time staff during their peak seasons expect to be short of workers.

Representatives William Keating (D-Mass.), whose district includes Cape Cod, and Jack Bergman (R-Mich.) have introduced a bill in the House, “The Small Business Assistant Act of 2017,” that would exempt returning H-2B workers from the cap. If passed, the number of visas available may triple.

Hotels and restaurants on Cape Cod and other places that depend heavily on tourism dollars rely on H-2B foreign workers to do housekeeping, dishwashing, and grounds keeping. Others that depend upon the program include the crabbing industry on Maryland’s Eastern Shore, the Nantucket hospitality industry, Colorado’s skiing and recreational industries, the fishing industry in Alaska, and forestry operations and amusement and recreational parks nationwide.

Senator Thom Tillis (R-N.C.), with Senators Bill Cassidy (R-La.), Mark Warner (D-Va.), and former Senator Mikulski (D-Md.), introduced the “Save our Small and Seasonal Businesses Act of 2015,” also to reinstate the returning worker exemption. When seasonal businesses cannot open on time because they do not have enough foreign workers, their U.S. workers also are unemployed and the economies in these areas generally suffer. Senator Tillis stated that the bill would “continue to place a priority on both the American workforce and our local economies.” Even in Guam, the healthcare and construction industries are missing the H-2B visas they need.

As an interim measure, due to the time-sensitive nature of these visas, Senators have called on the USCIS to conduct an H-2B visa audit to ensure that all available visas actually have been utilized. Keating and close to 40 other Representatives have joined in that request.

Meanwhile, in Euskadia Inc. v. Kelly, No. 1:17-cv-00205, landscaping, construction, roofing, fencing and other companies have asked the U.S. District Court of the Western District of Texas to force the USCIS to continue to process their H-2B visa applications. The court found the plaintiffs were not entitled to preliminary injunctive relief. An amended complaint was filed on March 22. We will report on further developments.