Law and the Border: Seasonal Driver Visa Not Available This Summer

by Daniel Joyce

There is a perception, and even an expectation, that the U.S. Immigration laws changed drastically after 911, and that things like work visas and waivers are much harder to obtain now.

We have pointed out here that this is really not the case; the basic structure of the Immigration laws and the availability of work permits and waivers, have remained the same.

Most of the problems we have seen arise from the unconscionable processing delays for visa and waiver applications, more comprehensive background checks, and changes in procedures at the border and at U.S. Embassies.

Earlier this spring, U.S. Citizenship and Immigration Services (CIS) announced that the annual quota of H-2B visas had been reached, and that no more visas would be available until the start of the new government fiscal year on Oct. 1.

Again, some people made the conclusion that the laws had changed and that this is just one more example of the CIS tightening the borders and restricting access to the United States.

In reality, however, it has nothing to do with those factors, and is merely a result of a large increase in H-2B applications that reached an annual limit that has been in place for many years.

The H-2B visa is for temporary non-agricultural workers in the United States.

The employer must show that the need for extra employees is temporary, such as a seasonal, peak load or intermittent need. Some industries, such as tourism, fishing and landscaping, rely heavily on these visas for seasonal help at locations that do not have a sufficient year-round population base from which to draw qualified workers.

In the trucking industry, Canadian drivers often obtain H-2B visas for the busy summer months in the household goods area, and the end of the year for courier delivery services.

When Congress created the H-2B visa almost 15 years ago, it established a maximum number of 66,000 visas annually.

For years, the number of applications never reached or exceeded this number.

Then, for some reason – some people point to a significant increase in hiring for landscape workers in the southern United States – the government received more that 100,000 applications this year, exceeding the limit for the first time.

Left with no alternative, the CIS announced the annual quota had been reached and that no new visas would be available until Oct. 1.

The cap only applies to new visas, not renewals, and individuals holding current visas can receive renewals.

Nevertheless, most employers rely on new hires, and the effect may be devastating this summer.

Although H-2B visas are not as prevalent in the transportation industry as in other industries, they do represent one of the very few exceptions to the rule that Canadian drivers are not eligible for U.S. work permits.

But even someone fortunate enough to qualify for the H-2B visa should not treat it as a long-term solution.

It is not the type of visa category that allows the visa holder to reside in the United States indefinitely, and it is not a “stepping stone” to the U.S. green card.

In fact, the opposite is true.

The H-2B visa is not designed to meet the needs of an employer in an industry with chronic shortage of workers.

A major U.S. carrier was denied H-2B visas for drivers despite the finding that there was a chronic shortage of workers on the reasoning that a continuous temporary need for drivers is a equivalent to a permanent need, thereby disqualifying the carrier from H-2B eligibility.

H-2B visas are generally issued for terms for less than one year, with a maximum of one year. Extensions of stay for subsequent years are possible, but the employee cannot be continuously employed in the U.S. for more than three years.

The application procedures for the H-2B visa are lengthy, because the employer has to show that there is a genuine shortage of workers, and not a displacement of qualified U.S. workers.

Employers wishing to hire a foreign worker must demonstrate that no U.S. workers are available for the position and that the employment of the foreign workers will not adversely affect the wage rate and working conditions of similarly employed U.S. workers.

The visa is employer-specific, meaning that the driver can only engage in work for that one employer.

When the visa is issued for a term of less than one year, the driver can enjoy the benefits of it year after year, indefinitely. However, the restrictive nature of the visa is a far cry from the general “work permit” concept the drivers usually have when seeking work in the United States.

Rather than serving as a basis for a driver and his family to move to the United States, the H-2B visa holder is more often characterized by a driver who maintains his home in Canada, and comes to the United States temporarily to work for a U.S. company for a season, or specified time period.

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 1-716-564-2727.

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