H-2B Employers Should Continue to Identify “Returning Workers” in Petitions for FY 2017

USCIS urges prospective H-2B employers seeking to hire potential “returning workers” with employment start dates in fiscal year (FY) 2017 to continue to identify these workers and provide the H-2B Returning Worker Certification.

The H-2B returning worker provisions of the Consolidated Appropriations Act of 2016 (Public Law 114-113) are set to expire Sept. 30, the last day of FY 2016, and Congress may or may not reauthorize them. These current provisions exempt eligible returning workers from the FY 2016 cap if they were counted toward the H-2B limit during fiscal years 2013, 2014 or 2015.

These provisions, which amend section 214(g)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)), do not apply to the FY 2017 cap. If reauthorized, either before or after Sept. 30, 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. Any action is in the discretion of Congress and the President.

USCIS 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 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. This will make more visa numbers available to other workers.

Filing Requirements

In addition to the rules for filing Form I-129, Petition for a Nonimmigrant Worker, the following requirements apply to H-2B returning workers:

• Certification: In the petition, employers must complete and include the H-2B Returning Worker Certification. This certification must be signed by the same person who signed Part 7 of Form I-129.  The certification states: “As a supplement to the certification made on the attached Form I-129, Petition for a Nonimmigrant Worker, I further certify that the workers listed below have been issued an H-2B visa or changed to H-2B status during one of the last three (3) fiscal years.”
• Named Workers: The H-2B Returning Worker Certification must include the full name of the worker. If the worker is in the United States under a different status, and the employer is petitioning to change the status to H-2B, then including evidence of previous H-2B admissions, such as a copy of the worker’s visa, may help prevent processing delays.
• Multiple Workers: A single petition may be filed on behalf of more than one worker. However, any returning workers must be listed on the H-2B Returning Worker Certification. For multiple named workers, employers must submit Attachment 1 of Form I-129 (pages 35 and 36).

USCIS recommends filing petitions for returning workers separately from petitions for new H-2B workers.

Cap Counting Procedures

The controlling date for H-2B fiscal year cap counting is the requested employment start date.

Under the current provisions, eligible returning workers with a requested start date of Sept. 30, 2016, or earlier are deemed exempt from the FY 2016 cap even if their employment extends into FY 2017. Petitions requesting H-2B workers for new employment with a start date of Oct. 1, 2016, or later will be counted toward the FY 2017 cap of 66,000, pending a decision on reauthorization.

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.