The H-2B returning worker provisions of the Consolidated Appropriations Act of 2016 expired on September 30, 2016. In anticipation that Congress could reauthorize this exemption from the
H-2B cap, U.S. Citizenship and Immigration Services (USCIS) had previously advised H-2B employers to continue identifying potential returning workers with employment start dates in fiscal year (FY) 2017. However, because Congress has not reauthorized the H-2B returning worker program, USCIS now urges employers to stop identifying returning workers in petitions for FY 2017.

Because the returning worker program has expired, petitions requesting H-2B workers for new employment with an employment start date on or after October 1, 2016, will generally be counted toward the annual H-2B cap of 66,000 for FY 2017, USCIS said.

Petitions for the following types of workers are still exempt from the H-2B cap:

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

For FY 2017, USCIS will consider those identified by employers as potential returning workers as subject to the cap. Once the H-2B cap is reached, USCIS may accept petitions only for H-2B workers who are exempt from or not subject to the H-2B cap. The spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap, USCIS noted.

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