The United States Citizenship and Immigration Services (USCIS) has announced that H-2B workers identified as ‘returning workers’ will be exempted from the fiscal year (FY) 2016 annual H-2B cap of 66,000 visas.
A returning worker is defined as an H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means:
– In general, if an employer submits a petition requesting an employment start date in FY 2016 (from 1st October 2015 – 30th September 2016) for an H-2B worker, the H-2B worker can only be considered a returning worker if he or she had been previously issued an H-2B visa or provided H-2B status between 1st October 2012 and 30th September 30 2015.
– If the prospective worker is in the United States in H-2B status, and is seeking to extend his or her stay, change employers, or change the terms and conditions of employment, then the worker would not be counted toward the H-2B cap and the employer would not need to request that the person be classified as a returning worker.
– Any prospective H-2B worker who does not qualify as a returning worker will be subject to the FY 2016 H-2B cap unless he or she has previously been counted toward the H-2B cap or is cap-exempt.
Under this legislation, the returning worker program only applies to petitions pending or approved on or after 18th December 2015, requesting named H-2B workers with an employment start date beginning in FY 2016.