The “returning worker” provisions make “returning workers” exempt from the annual H-2B fiscal year cap if they were counted toward the H-2B numerical limit during any one of the three fiscal years preceding the fiscal year of the requested employment start date.

Under current law, employers who file H-2B petitions identify and certify those workers who qualify as “returning workers.”

Although it is uncertain whether “returning worker” provisions will be extended by Congress, USCIS is urging prospective H-2B employers to continue to identify and certify those workers who qualify under the provision when filing petitions for employment start dates in FY2008.

This will enable the agency to adjust the count of H-2B workers for FY2008 if the provisions are extended.

If the “returning worker” provisions expire, all petitions requesting H-2B workers for new employment with a start date of Oct. 1, 2007 or later will be counted toward the annual H-2B cap of 66,000 for FY2008.

If the “returning worker” provisions are reauthorized, and if employers continue to identify and certify “returning workers” in their H-2B filings, USCIS will be able to identify cap exempt individuals and adjust its running cap counts, making more numbers available to other workers.