The H-2B returning worker provisions of the Consolidated Appropriations Act of 2016 (Public Law 114-113) expired on Sept. 30, 2016. In anticipation that Congress could reauthorize this exemption from the H-2B cap, 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.
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 Northern Mariana Islands or Guam from November 28, 2009, until .
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. Note that the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap.