[Congressional Record Volume 155, Number 23 (Thursday, February 5, 2009)]
[Senate]
[Pages S1684-S1685]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. MIKULSKI (for herself, Mr. Specter, Mr. Levin, Mr. Crapo, 
        Mr. Bond, Mr. Lieberman, Mr. Reed, Mr. Kerry, Mr. Enzi, Ms. 
        Collins, Mr. Bennett, Mr. Coburn, Mr. Whitehouse, Mr. Burr, Ms. 
        Snowe, Mr. Leahy, Mr. Carper, Mr. Cardin, Mr. Hatch, and Mr. 
        Barrasso):
  S. 388. A bill to extend the termination date for the exemption of 
returning workers from the numerical limitations for temporary workers; 
to the Committee on the Judiciary.

[[Page S1685]]

  Ms. MIKULSKI. Mr. President, today I rise to introduce a bill that is 
needed by small and seasonal businesses all over the nation. In 2005 I 
introduced and the Senate overwhelmingly passed legislation to keep 
these small and seasonal businesses alive. For many years they have 
relied on the H-2B visa program to meet these needs, but this year they 
can't get the temporary labor they need because they have been shut out 
of the H-2B visa program. That program lets them hire temporary foreign 
workers when no American workers are available.
  So today, I join with my colleague Senator Specter to introduce 
legislation that provides a quick and temporary fix to the H-2B 
problem. The Save our Small and Seasonal Businesses Act of 2009 will 
help these employers by extending the H-2B returning worker exemption 
for three years. It does not raise the cap and keeps the limit at 
66,000. I urge my colleagues to work with us to pass this legislation 
quickly to save these businesses and the thousands of American jobs 
they provide.
  Many in this body know about the H-2B crisis--a real crisis to 
thousands of small and seasonal businesses who face a shortage of 
workers as they approach their seasons. These small businesses count on 
the H-2B visa program to keep their businesses afloat. But this year, 
because the cap was reached so early in the year, many of these 
businesses will be unable to get the seasonal workers that they need to 
survive.
  Hitting the cap so early will have a great impact on Maryland. We 
have a lot of summer seasonal businesses in Maryland on the Eastern 
Shore, in Ocean City or working the Chesapeake Bay. Many of our 
businesses use the program year after year. They hire all the American 
workers they can find, but they need additional help to meet seasonal 
demands. Because the cap will be reached so early this year summer 
employers face a disadvantage. They can't use the program, so they 
can't meet their seasonal needs and many will be forced to limit 
services, lay-off permanent U.S. workers or, worse yet, close their 
doors.
  These are family businesses and small businesses in small communities 
in Maryland. If the business suffers the whole community suffers. For 
seafood companies like J.M. Clayton, what they do is more than a 
business, it's a way of life. Started over a century ago and run by the 
great grandsons of the founder, J.M. Clayton works the waters of the 
Chesapeake Bay, supplying crabs, crabmeat and other seafood, including 
Maryland's famous oysters, to restaurants, markets, and wholesalers all 
over the nation. It is the oldest working crab processing plant in the 
world and by employing 70 H-2B workers the company can retain over 50 
full time American workers.
  But its not just seafood companies that have a long history on the 
Eastern Shore. It's companies like S.E.W. Friel Cannery, which began 
its business over 100 years ago when there were 300 canneries on the 
Eastern Shore. But now those others are gone and Friel's is the last 
corn cannery left. Ten years ago, when the cannery could not find local 
workers, it turned to the new H-2B visa Program. It has used the 
program every year since, and many workers are repeat users who come 
each year and then go home after the season. What's important is that 
having this help each year has not only allowed the company to maintain 
its American workforce, but it has paved the way for local workers to 
return to the cannery.
  Now these employers can't just turn to the H-2B program whenever they 
want seasonal workers. First, employers must try to vigorously recruit 
U.S. workers. These businesses try to hire American workers--they would 
love to hire American workers. In fact, the H-2B program requires these 
businesses to prove that they have vigorously tried to recruit American 
workers. They have to advertise for American workers and give American 
workers a chance to apply. They have to prove to the Department of 
Labor that there are no U.S. workers available. Only after that are 
they allowed to fill seasonal vacancies with H-2B visa workers. The 
workers that they bring in often participate in the H-2B program year 
after year. They often work for the same companies. But they cannot and 
do not stay in the U.S. They return to their home countries, to their 
families and their U.S. employer must go through the whole visa process 
again the following year to get them back. That means an employer must 
prove again to the Department of Labor that they cannot get U.S. 
workers.
  This legislative fix keeps that visa process in place. It's a short-
term legislative fix to solve the immediate H-2B visa shortage. It does 
not take the place of comprehensive immigration reform.
  This legislation is a temporary 3 year fix. It exempts returning 
seasonal workers from the cap. These are workers who have already 
successfully participated in the H-2B visa Program. They received a 
visa in one of the past 3 years and have returned home to their 
families after their seasonal employment with a U.S. company.
  Everyone must still play by the rules. Employers must go through the 
whole visa process, prove they need the seasonal help and only after 
that are returning employees exempt from the cap. Employees must be 
those who have left the U.S. and are requesting a new H-2B visa to come 
back for another season. This new system rewards those who have played 
by the rules, worked hard and successfully participated in the program. 
The bill gives a helping hand to businesses by allowing them to retain 
workers who they have already trained to do their seasonal jobs.
  This is a quick and simple fix. It lasts three years. And it does not 
get in the way of comprehensive immigration reform.
  I worked with my colleagues to get a bill with strong bi-partisan 
support. A bill that would work.
  This bill is realistic. It provides a temporary solution because 
immediate action is needed to help these small and seasonal businesses 
stay in business. Yes--we need to help them now. Their seasons start 
soon. If they don't get seasonal workers this year, there may not be 
any businesses around next year to help.
  Every member of the Senate who has heard from their constituents--
whether they are seafood processors, landscapers, resorts, timber 
companies, fisheries, pool companies or carnivals--knows the urgency in 
their voices, knows the immediacy of the problem and knows that the 
Congress must act now to save these businesses. I urge my colleagues to 
join this effort, support the Save our Small and Seasonal Businesses 
Act, and push this Congress to fix the problem today.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 388

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Save Our Small and Seasonal 
     Businesses Act of 2009''.

     SEC. 2. EXTENSION OF RETURNING WORKER EXEMPTION TO H-2B 
                   NUMERICAL LIMITATION.

       (a) In General.--Section 214(g)(9)(A) of the Immigration 
     and Nationality Act (8 U.S.C. 1184(g)(9)(A) is amended to 
     read as follows:
       ``(A) Subject to subparagraphs (B) and (C), an alien who 
     has already been counted toward the numerical limitation 
     under paragraph (1)(B) during any 1 of the 3 fiscal years 
     immediately prior to the fiscal year of the approved start 
     date of a petition for a nonimmigrant worker described in 
     section 101(a)(15)(H)(ii)(b) shall not again be counted 
     toward such limitation for the fiscal year for which the 
     petition is approved. Such an alien shall be considered a 
     returning worker.''.
       (b) Effective Date; 3-Year Limitation; Sunset Provision.--
     The amendment made by subsection (a) shall--
       (1) take effect as if enacted on December 1, 2008;
       (2) apply only to petitions with an approved start date in 
     fiscal year 2009, 2010, or 2011; and
       (3) terminate on the date that is 3 years after the date of 
     the enactment of this Act.
                                 ______