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:

• In general, if the employer submits a petition requesting an employment start date in FY 2016 (from October 1, 2015 – September 30, 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 October 1, 2012, and 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 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:

• Certification: In the petition, the employer 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 returning worker.  If the returning worker is in the United States and the employer is petitioning to change his or her status to H-2B, then it may be in the interest of the employer to include evidence of previous H-2B admissions, such as a copy of the worker’s visa, to 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, “Attachment 1” to Form I-129 (pages 35 and 36) must also be completed and included. It is recommended that petitions for returning workers be filed separately from petitions for new H-2B workers.
  • If the petition is approved: The U.S. Consulate may deny a visa or a U.S. Customs and Border Protection (CBP) port inspector may refuse admission if workers cannot be confirmed as returning workers, or are otherwise ineligible for admission or visa issuance. DHS and Department of State will work together to confirm that all certified returning workers qualify for the program.

Petitioners: The employer may request to designate H-2B workers as returning workers if the employer 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. The employer should submit the H-2B Returning Worker Certification with a copy of the employer's Form I-797 receipt notice to the address where the petition was filed no later than March 4, 2016. The employer must 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).