Fiscal Year 2016 H-2B Cap Exemption

H-2B Visa ExemptionsEmployers who submit H-2B visa petitions to the U.S. Citizenship and Immigration Service (USCIS) with a pending or approved status on or after Dec. 18, 2015 can be classify as “returning workers” those workers who have been counted previously against the H-2B cap of 66,000 visas. The classification can be applied to workers with an employment start date in fiscal year 2016 and who were counted against the cap between Oct. 1, 2012 and Sept. 30, 2015– the fiscal years of 2013, 2014 and 2015.

According to February 5 USCIS release, prospective workers who are already in the United States with H-2B visa status and who are seeking to extend their stay, change employers or change the terms and conditions of employment aren’t counted toward the H-2B visa cap. Because these workers aren’t counted against the cap, employers don’t need to classify these H-2B visa holders as “returning workers.”  

In the same way, any prospective H-2B worker who doesn’t qualify as a returning worker is subject to the FY 2016 H-2B visa cap. However, this doesn’t apply to workers who have already been counted as part of the visa cap or who are cap-exempt.

Besides rules around the filing and processing of  Form I-129, Petition for a Nonimmigrant Worker, other additional requirements are applicable for H-2B returning workers. These include:

  • Certification: Employers must include the H-2B Returning Worker Certification, which must be signed by the same person who signed Part 7 of Form I-129.  The certification states that listed workers have been issued an H-2B visa or changed to H-2B status during one of the last 3 fiscal years.
  • Named Workers: Include the full name of the returning work on returning worker certification form. USCIS notes that when employers seek to change the status of foreign nationals to H-2B and the returning worker is already in the United States, it’s often worthwhile to include evidence of H-2B admissions. USCIS advises that including this evidence can help in avoiding processing delays.
  • Multiple Workers: Employers can file just a single petition on behalf of more than one worker. Be sure to list all returning workers on the H-2B Returning Worker Certification. When naming multiple workers, “Attachment 1” to Form I-129 (pages 35 and 36) must also be completed and included. USCIS advises filing petitions for returning workers separately from petitions for new H-2B workers.