President Bush signed the National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122) into law earlier this week. The bill includes a one year extension of the returning worker exemption to the H-2B visa cap. The extension takes effect beginning October 1, 2006.
VisaPro readers are aware that on April 1, 2006, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). The SOS Act allowed USCIS to accept filings beginning April 1, 2006 for workers seeking work start dates as early as October 1, 2006.
For FY 2007 all “returning workers” means workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means that for a petition with a work start date after October 1, 2006 (FY 2007), the worker must have been previously approved for an H-2B work start date between October 1, 2003 and September 30, 2006.
Although USCIS regulations allow for filings 6 months in advance, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be files more than 120 days in advance of the need the employee to ensure the accuracy of the labor market test.