Returning H-2B Workers Won’t Count Against Visa Cap

Employers must certify workers by March 4 for cap relief

By Roy Maurer February 12, 2016

Employers planning to use H-2B foreign guest workers for seasonal jobs in fiscal year (FY) 2016 should act fast to identify and certify any returning workers from the previous three fiscal years.

H-2B workers identified as returning workers—those issued an H-2B visa or in H-2B status between Oct. 1, 2012, and Sept. 30, 2015—are exempted from the FY 2016 annual H-2B cap of 66,000 visas.

Employers with petitions pending or approved on or after Dec. 18, 2015, can submit an H-2B Returning Worker Certification form with a copy of the Form I-797 receipt notice to the address where they filed the petition no later than March 4, 2016, to receive relief from the cap.

The announcement by U.S. Citizenship and Immigration Services (USCIS) follows changes made to the H-2B program in the Dec. 18, 2015, omnibus appropriations legislation funding the government through the end of fiscal year 2016. Among other changes, the law provided that H-2B workers counted against the annual cap in fiscal years 2013, 2014 or 2015 can return during FY 2016 without counting toward the limit.

“This change will likely create a significant benefit for the business community because it does exempt a fairly substantial number of workers from being counted against the cap,” said Chad Blocker, a partner in the Los Angeles office of international immigration law firm Fragomen.

Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 visas for workers who begin employment in the first half of the fiscal year (Oct. 1-March 31) and 33,000 visas for workers who begin employment in the second half of the fiscal year (April 1-Sept. 30). Any unused numbers from the first half of the fiscal year are available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over to the next.

Blocker said that as of Feb. 9, 2016, almost 32,000 H-2B workers have been counted against the cap for the current fiscal year. “That would mean that we’re likely to hit the 33,000 cap for the first half,” he said. “And historically, the summer season has been even busier for H-2B workers.”

The H-2B cap for FY 2015 was reached in June, more than three months before the end of the fiscal year. Once the cap is reached, USCIS may accept petitions only for workers who are not subject to it.

Some H-2B workers already are exempt from the cap, including those who extend their stay, change employers, or change the terms and conditions of their employment. The spouses and children of H-2B workers classified as H-4 visa holders are also not counted against the cap.

Filing Requirements for Returning Workers

USCIS recommended that petitions for returning workers be filed separately from petitions for new H-2B workers. When filing to identify a returning worker, employers are required to:

  • Attach the H-2B Returning Worker Certification form, signed by the same person who signed Part 7 of Form I-129.
  • List the full names of the returning workers. A single petition may be filed on behalf of more than one worker, but all returning workers must be listed on the H-2B Returning Worker Certification form. For multiple named workers, “Attachment 1” to Form I-129 (pages 35 and 36) must also be completed and included.
  • Include evidence of previous H-2B admissions, such as a copy of the visa, if petitioning to change the status of a worker already in the U.S. to that of a returning worker.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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