‘Returning workers’ no longer exempt from H-2B cap

Many different things can have a big impact on employers who are trying to get a work visa for a foreign worker they desire to employ here in the United States. Among these are the cap rules related to the visa they are trying to secure for such a worker. Different work visas have different cap rules, including differing rules on what sort of cap (if any) is present and what workers are exempt from the cap.

Whether a given foreign worker would be cap-exempt can have significant implications for an employer. One reason for this is that, when a given work visa has a cap and that cap has been reached, a worker generally has to be cap-exempt to remain eligible to be considered for that type of visa during the remainder of the cap period.

Changes sometimes occur in what sort of cap exemptions are available for a given work visa. Recently, one type of exemption got taken off the table for the cap for H-2B visas.

H-2B visas are for temporary workers in non-agricultural jobs. The cap for this visa type is 66,000 workers per fiscal year.

The exemption that has disappeared is the “returning worker” exemption. This program, which went into force on Dec. 18, 2015, allowed workers who had previously been in the U.S. on an H-2B visa granted between October 2012 and September 2015 to be cap-exempt for fiscal year 2016.

On Sept. 30, 2016, this exemption program expired. Congress opted not to reinstate the program for fiscal year 2017. So, this exemption is no longer available. In light of this, the federal government recently sent out a notice instructing employers to no longer identify potential returning worker status in fiscal year 2017 H-2B petitions.

Skilled immigration lawyers understand how impactful cap-related issues, such as rule changes related to cap exemptions, can be on employers who are looking to hire foreign workers here in America. When such issues arise for an employer, such lawyers can advise them on the implications of the issue and what they can do in response to the issue.

Sources: U.S. Citizenship and Immigration Services, “H-2B Temporary Non-Agricultural Workers,” Accessed Jan. 3, 2017

U.S. Citizenship and Immigration Services, “H-2B Returning Worker Program Expired: Employers Should Stop Identifying “Returning Workers” in Petitions for FY 2017,” Dec. 21, 2016