Effective April 13, 2012, the Department of State increased visa processing fees. The fees for most non-immigrant visa applications and Border Crossing Cards increased, while all immigrant visa processing fees decreased. The rate for petition-based visas (including H visas) changed from $150 to $190 per applicant. This change resulted from an interim final rule.
While the fees went into effect, the State Department allowed for an open comment period. The American Hotel & Lodging Association, the American Nursery & Landscape Association and the Professional Landcare Network (PLANET), along with organizations from various industries, submitted comments to the DOL regarding the effect of these increases.
Those comments were as follows:
May 29, 2012
U. S. Department of State
Office of the Comptroller, Bureau of Consular Affairs,
2402 E Street NW
Washington, DC 20520
Re: RIN 1400-AD06
To Whom It May Concern:
Thank you for providing the H-2B Workforce Coalition the opportunity to comment on 22 CFR Parts 22 and 42, Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates. The H-2B Workforce Coalition is a consortium of various U.S. industry associations that have joined together to protect American workers by ensuring American small and seasonal employers have access to legal short-term temporary workers during peak business periods.
The ability of seasonal businesses to keep their doors open and retain their full-time employees relies upon having successful peak seasons to offset the rest of the year when their business is slow. During their busy seasons, companies must supplement their permanent staffs with temporary seasonal employees. Employers spend thousands of dollars and hundreds of hours in their efforts to fill these positions. Unfortunately, even in today’s tough economic climate, there are not enough local workers available to fill all the temporary seasonal positions. As a result, companies often must utilize the H-2B program to find seasonal workers.
The H-2B program is already costly and time-consuming. The proposed visa fee increases would add to those costs without providing any real benefit to employers who use the program. Over the past several years, H-2B employers have seen significant changes in the program. There have been significant increases in costs, including U.S. Citizenship and Immigration Services filing fees and the amounts that employers are required to pay for workers’ transportation and visa expenses. H-2B employers also face the pending implementation of onerous Department of Labor regulations.
We are extremely concerned about the significant increases in H-2B visas fees and the impact these added costs will have on the ability of seasonal employers to utilize the program to ensure a sufficient and stable work force. While the Federal Register notice states that the proposed fee of $190 amounts to a 27% increase, this amounts to a 2-year increase of 45%. This increase is extremely onerous when combined with the impact of other increased costs and new regulations.
As part of the justification for the increase, the Department of State (DOS) indicates that the fees will help fund additions in adjudication capacity in the consulates in China and Brazil as well as improvements in the physical plants for applicants and staff in those two countries. The Department of Homeland Security (DHS) currently prohibits employers from using workers from China for the H-2B visa program. According to DOS statistics1 for FY2011, only 79 individuals from Brazil were issued H-2B visas. This means that, with the exception of these workers and their employers, the greater community of H-2B employers and workers will be funding operations for which they receive no benefit.
Further, temporary, seasonal H-2B visas tend to be issued annually for the same worker(s) by the same employer(s). Raising these temporary visa fee is an added burden and yet another competitive disadvantage for U.S. employers who are employing legal workers. We encourage the Department to implement a much less labor intensive interview process for those H-2B visa workers who return to the same job categories in successive years, thereby reducing the interview workload without requiring the substantial and intrusive visa fee increases.
Under Regulatory Findings the Department certifies that the rule will not have a significant economic impact on a substantial number of small entities. In justifying this finding the rule states in part, “the visa itself is sought and paid for by an individual foreign national overseas who seeks to come to the United States” and later states “therefore, the $40 increase in the application processing fee for Employment-Based nonimmigrant visas is not likely to have a significant economic impact on the small entities that choose to reimburse the applicant for the visa fee.” H-2B employers are required to pay workers’ transportation and visa expenses where shifting these costs to the worker would bring their wages below the FLSA minimum wage in their first workweek of employment. As a practical matter, many H-2B employers pay these costs because the FLSA analysis alluded to in the FAB is simply too complicated to navigate. For workers that pay these fees (where doing so does not result in a minimum wage violation), $190 is a substantial amount of money.
Because of the cost burden on H-2B employers and workers, and the lack of benefit the increase will provide to H-2B users, we urge the Department to retract the fee increase for H-2B visas.
The H-2B Workforce Coalition