While it’s uncertain whether or not Congress will reauthorize returning workers provisions around H-2B nonimmigrant worker visas—a provision that exempts certain eligible returning workers from the H-2B cap—U.S. Citizenship and Immigration Services (USCIS) encourages relevant employers to continue identifying these workers and to provide the H-2B Returning Worker Certification. Identification of returning workers will help USCIS identify those visas that shouldn’t be counted against the cap if Congress does reauthorize the returning worker provisions.
The returning worker provisions applies to those H-2B workers who were counted toward H-2B limits established for fiscal years 2014, 2015 and 2016. If action toward reauthorization is taken by Congress or the President either before or after September 30 of this year, “the provisions for FY 2017 would likely exempt returning workers who were counted toward the H-2B limit during fiscal years 2014, 2015 or 2016,” according to a USCIS statement.
Employers planning on hiring returning workers file Form I-129, Petition for a Nonimmigrant Worker and also follow certain other requirements, including:
- Certification: Employers must complete and 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 acknowledges that listed workers have been issued an H-2B visa or changed to H-2B status during one of the last three fiscal years.
- Named Workers: Along with the full name of the worker, the certification must include information on any different status the worker holds. Providing a copy of the workers’ previous visa could aid in preventing processing delays.
- Multiple Workers: Although more than one worker can be included in a single petition, any returning workers must be listed on the H-2B Returning Worker Certification. Employers must submit Attachment 1 of Form I-129 for multiple named workers.
In order to maintain paperwork coherence, USCIS recommends separate petition filings for returning workers from petitions for new H-2B workers.
On the possibility that the returning workers provisions renew, early identification of those workers who don’t need to be counted against the cap will allow the issuance of more visas to other workers, according to a USCIS statement.
“Continuing to identify and certify returning workers will enable USCIS to keep an accurate count of H-2B nonimmigrant workers for the FY 2017 cap regardless of whether the provisions are reauthorized. 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.”