The “returning worker” provisions that had shielded H-2B employers from the H-2B cap has not been reauthorized by Congress, which has prompted U.S. Citizenship and Immigration Services (USCIS) to urge employers to stop identifying potential returning workers in their petitions submitted for fiscal year (FY) 2017. Previously, USCIS had advised H-2B employers to continue identifying potential returning workers with employment start dates in fiscal year 2017.
At issue is the returning worker provisions of the Consolidated Appropriations Act of 2016 (Public Law 114-113), which expired on Sept. 30, 2016. While USCIS had anticipated Congressional renewal of the provisions, which exempt certain H-2B workers from the nonimmigrant visa cap, the legislative body allowed the provisions to lapse. Essentially, according to the USCIS release, “petitions requesting H-2B workers for new employment with an employment start date on or after October 1, 2016 will generally be counted toward the annual H-2B cap of 66,000 for FY 2017.”
H-2B visas that are still considered exempt include:
- Current H-2B workers currently in the U.S. and who are petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
- H-2B visa holders who are fish roe processors, fish roe technicians or supervisors of fish roe processing; and
- H-2B visa holders who are performing labor or services in the Commonwealth of Northern Mariana Islands or in Guam from November 28, 2009, until December 31, 2019.
The change in USCIS guidance means that for FY 2017, USCIS will consider those who are identified by employers as potential returning workers as subject to the cap. When the H-2B cap is reached, USCIS will only accept petitions only for H-2B workers who are exempt from or not subject to the H-2B cap. Spouses and children of H-2B workers classified as H-4 nonimmigrants aren’t counted against this cap.
In its September release advising employers to file petitions with the “returning worker” identifications, the agency added, “If Congress has not extended the provisions by the time the 33,000 cap for the first half of FY 2017 is reached, then USCIS will consider those provisionally designated as returning workers as subject to the cap and will reject additional cap-subject H-2B filings.”