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USCIS, Feb. 5, 2016- "H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016
H-2B Employers Urged to Identify Returning Workers when Filing Petitions
Effective December 18, 2015, H-2B workers identified as “returning workers” are exempted from the fiscal year (FY) 2016 annual H-2B cap of 66,000 visas. See Immigration and Nationality Act (INA) §214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as revised by Consolidated Appropriations Act of 2016 (Public Law 114-113).
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:
Under this legislation, the returning worker program only applies to petitions pending or approved on or after December 18, 2015, requesting named H-2B workers with an employment start date beginning in FY 2016.
Filing Requirements
In addition to the current rules regarding the filing and processing of the Form I-129, Petition for a Nonimmigrant Worker, the following additional requirements are applicable for H-2B returning workers:
Petitioners: You may request to designate H-2B workers as returning workers if you named beneficiaries who meet the definition of returning workers on an H-2B petition that was pending or approved on or after December 18, 2015, but did not include the required certification. Submit the H-2B Returning Worker Certification with a copy of your Form I-797 receipt notice to the address where you filed the petition no later than March 4, 2016. Write “Attn: H-2B Supervisor” on the envelope. This certification must meet the signature and named worker requirements listed above.
Each petition must include a temporary labor certification (TLC) from the Department of Labor (DOL). The process for TLCs is described on the DOL website at http://www.dol.gov/index.htm. USCIS will accept a copy of the TLC in those cases where the original TLC has previously been accepted by USCIS.
For more information about the H-2B work program, visit our website at http://www.uscis.gov/h-2b or call the National Customer Service Center at 1-800-375-5283."