H-2B Employers Should Keep Count of Returning Workers

Provision exempting workers from visa cap expires Sept. 30, but may be renewed

By Roy Maurer Sep 19, 2016
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Employers intending to hire H-2B visa workers in fiscal year (FY) 2017 should continue marking workers as "returning" if they came to the U.S. on low-skilled, nonagricultural visas in any of the prior three fiscal years.

U.S. Citizenship and Immigration Services (USCIS) said that employers seeking employees who will start work Oct. 1 or later should keep track of who is a returning worker in case the provision exempting returning workers from the annual H-2B visa cap is renewed by Congress.

The provision that allows such workers to be exempt from the annual cap of 66,000 visas expires Sept. 30, and the exemption faces opposition from some lawmakers who say it undercuts U.S. workers.

Supporters of the program argue that seasonal employers like landscapers and fisheries need access to workers that they otherwise can't find. Included within a FY 2017 spending bill is language that would renew the returning worker exemption, but its future is uncertain.

The USCIS announcement "is regrettably a bellwether of the lack of transparency and predictability with the H-2B program," said Chad Blocker, a partner in the Los Angeles office of global immigration law firm Fragomen. "[It] expressly acknowledges the uncertainty H-2B employers face for the upcoming fiscal year, noting that Congress may or may not reauthorize the cap exemption for returning workers."

USCIS said it has already started to receive H-2B petitions requesting employment start dates in FY 2017. "Continuing to identify and certify returning workers will enable USCIS to keep an accurate count of H-2B workers for the FY 2017 cap regardless of whether the provisions are reauthorized," the agency said. "If Congress reauthorizes the provisions, and if employers continue to identify and certify returning workers in H-2B filings, then USCIS will be able to identify cap-exempt cases and adjust its counts accordingly. This will make more visas available to other workers."

Blocker said that the agency's efforts to accurately count the number of H-2B visas used against the cap is laudable, but "the way in which the government has recently managed the H-2B program simply doesn't allow employers to plan with any level of certainty."

Filing Requirements for Returning Workers

USCIS recommends that petitions for returning workers be filed separately from petitions for new H-2B workers. In addition to adhering to the rules for filing for an H-2B guest worker visa, employers must complete and include the H-2B Returning Worker Certification, which certifies that the workers listed were issued an H-2B visa or changed to H-2B status during one of the last three fiscal years. This certification must be signed by the same person who signed Part 7 of Form I-129.

Petitioners should list the full names of the returning workers. A single petition may be filed on behalf of multiple workers, but all returning workers must be listed on the returning worker certification form. For multiple named workers, Attachment 1 to Form I-129 (pages 35 and 36) must also be completed and included.

Evidence of a previous H-2B admission, such as a copy of the visa, should be included if petitioning to change the status of a worker already in the U.S. to that of a returning worker.

Employers should also understand that if Congress elects not to reauthorize the returning worker provision, the additional filing and certifications will all be for naught, Blocker said.

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