H-2B Employers Advised Against Identifying Returning Workers in Petitions for FY 2017

The H-2B returning worker provisions of the Consolidated Appropriations Act of 2016 expired on September 30, 2016 and because Congress has not reauthorized the program, USCIS is now urging employers to stop identifying potential returning workers in petitions for fiscal year 2017, despite their previous instructions for the latter.

Based on the expiration of the H-2B returning worker program and the lack of reauthorization by Congress, petitions for new employment under the H-2B program with an employment start date on or after October 1, 2016 will be counted towards the annual H-2B cap of 66,000 for FY 2017.

In 2016, Congress renewed a one-year expansion of the H-2B Seasonal Worker Visa Program, which effectively increased the number of such visas to 198,000 but for 2017 this renewal was not issued. Without the expanded numbers from a renewal, the government issues half of the H-2B visas from October to March, and the other half from April to September. Once the 33,000 cap is reached for that half of the year, many employers fall short on the amount of H-2B workers needed to maintain proper operation of their businesses. The H-2B Visa allows workers to stay in the U.S. for up to 10 months at a time.

Once the H-2B cap is reached, petitions only for H-2B workers who are exempt from or not subject to the cap may be accepted by USCIS. The types of workers who’s petition are still exempt from the H-2B Cap are as follows:

  • Current H-2B workers in the U.S. petitioning to extend their stay or making changes to the terms of their employment or employer.
  • Fish roe processors, technicians, or supervisors.
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam from November 28, 2009, until December 31, 2019.

For more information on the H-2B returning worker program, please refer to the USCIS website.