H-2B Articles

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H2R Visa: Returning H-2B Workers

Seasonal employers in many U.S. industries, including seafood processors, landscapers, ski areas, and hotels, rely on seasonal labor to get them through the busy season. The H-2B temporary worker visas have allowed these businesses to hire workers from overseas. Americans are increasingly shunning short-term, low-paying, manual labor jobs, so seasonal employers have turned to H-2B visas to find the labor they need to get the job done. Today, H-2B visas are in such high demand that many seasonal employers who need them are simply out of luck.

H-2R, a visa for returning H-2B workers

The H-2R visa is a relatively new temporary worker visa. It is issued to workers who have possessed an H-2 visa in any of the previous three fiscal years, and are returning to the United States to work. Seasonal workers entering the U.S. with an H-2R visa fall under the same rules as other H-2B workers; they are entitled to the same privileges and subject to the same restrictions as any other H-2B visa holders.

The H-2R provisions are part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, signed into law by President Bush on May 11, 2005. The Act provides that if an applicant has been issued an H-2B visa based on an approved petition in any of the previous three fiscal years, the applicant is not counted against the current fiscal year's annual limit.

To be issued an H-2R visa, an applicant must have an approved I-129 petition from the USCIS, Department of Homeland Security. The petition should contain a certification from the petitioning employer that the applicant is a returning worker. Once USCIS has approved the petition, the Department of State (DOS) either through the KCC or the consulates, must also verify that the applicant was issued a H2B visa in at least one of the previous three fiscal years prior to the fiscal year of the approved start date of the worker's petition.

All H-2B petitions which USCIS has indicated the beneficiary is a returning worker will be sent to the KCC for review. Following its review KCC will stamp the petition with their findings. If the H-2B petition has only one beneficiary, KCC will stamp the petition with one of the following stamps:

Returning Worker Verified By KCC
Possible Returning Worker Determined By KCC
No Evidence Of Returning Worker Determined By KCC

If the H-2B petition has multiple beneficiaries, KCC will stamp the petition: INCLUDES RETURNING WORKERS SEE ATTACHED. The attachment will be a spreadsheet containing the KCC receipt date, petitioner and receipt number, employee name, DOB, POB, and will note if each employee is A, B or C above. However, in some cases there will not be enough information to confirm beneficiary's previous H-2B status. In cases where the KCC is unable to confirm that the beneficiary is a returning worker, the consulates will have to complete the verification process themselves. Once the returning worker status us verifies the beneficiary will be issued an H-2R visa, provided he or she is otherwise qualified for the visa.

Conclusion:

If an employer has a temporary worker that has worked for them in one of the past three years they need to include a certification with the I-129 petition noting that. The employer should also include enough information for the USCIS and the State Department to e able to confirm the beneficiary's previous H-2B status. If the DOS is unable to verify the previous H-2B status the beneficiary can still be processed under the H-2B category if the beneficiary is otherwise qualified and there are still numbers available under the annual limit. If there are no numbers available under the annual H-2B limit the visa will be refused under section 214(b) as the applicant did not meet the definition of a "returning worker" and is therefore not entitled to the nonimmigrant status.

This H-2R category is a great benefit to employers that have the same workers coming back every year. It relieves them from the worry of whether they will get their petition in before the H-2B cap is reached and facing the prospect of having to work the season short-handed.

If you are an employer who has questions regarding Labor Certification or need assistance with the H-2B filing, contact ExpressH2B. ExpressH2B attorneys would be happy to assist you.