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email Returning H2B (H2R) Workers
UNCLASSIFIED
R 072237Z JUL 05
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
RUEHDBU/AMEMBASSY DUSHANBE 0698
RUEHKH/AMEMBASSY KHARTOUM 9691
RUEHTRO/USLO TRIPOLI 3251
RUEHBE/AMEMBASSY BELIZE 1999
E.O. 12958: N/A
TAGS: CVIS, CMGT
SUBJECT: H2R VISAS: RETURNING H2B WORKERS
STATE 00126721
1. The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, 119 Stat. 231, was signed into law by the President on May 11, 2005. The Act provides that if an applicant has been issued an H2B 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. The legislation is available on-line at (http://caweb/documents/HR1268ConferenceReport.pdf).
2. In order to process the case as the new category, H2R, the applicant must have an approved I-129 petition from the Department of Homeland Security, which should contain a certification from the petitioning employer that the applicant is a returning worker. The Department, either KCC or posts, 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.
3. KCC will check all H2B petitions on which DHS has indicated the beneficiary is a returning worker. If the H2B petition has only one person, KCC will stamp the petition with one of the following stamps:
A) RETURNING WORKER VERIFIED BY KCC
B) POSSIBLE RETURNING WORKER DETERMINED BY KCC
C) NO EVIDENCE OF RETURNING WORKER DETERMINED BY KCC
If the H2B petition has multiple names, 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 biographic data available to confirm previous issuance. If KCC has been unable to confirm that the individual is a returning worker, you will need to verify the previous issuance of an H2B through the CCD.
4. You then should issue a H2R visa to the worker, provided he or she is otherwise qualified for the visa. The H2R visa category is being entered into the NIV system and CST tables. This will permit us to maintain an accurate count of the number of H2B visas that have issued.
5. If an applicant claims entitlement to H2R status, but you find that the applicant was not issued a visa previously, you may still process the applicant under the H2B category if the applicant is otherwise qualified and there are still numbers available under the annual limit. If there are no numbers available under the annual H2B limit, post should refuse the case 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.
6. We report to USCIS the number of workers claiming H2R status who are ultimately issued H2Bs, so that CIS may reduce the annual limit accordingly. In order to track these numbers, we created a new quasi-refusal code PH2R. Please enter this refusal code before approving a H2B visa for an otherwise qualified applicant who has claimed status under H2R.
7. 9 FAM 41.53 N4-5 will be revised as follows:
a. The H2B classification applies only to aliens who are coming temporarily to the United States to perform non- agricultural service or labor of a temporary or seasonal nature, other than graduates of medical schools coming to provide medical services, if unemployed persons capable of performing such work cannot be found in the United States.
b. This classification requires a temporary labor certification issued by the Department of Labor or the Government of Guam, or a notice from one of these agencies that such a certification cannot be made, prior to the filing of a petition with DHS to confer H2B status.
c. The Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, 119 Stat. 231, was signed into law by the President on May 11, 2005. The Act provides that if an applicant has been issued a 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. The applicant must have a petition from the Department of Homeland Security certifying that he is a returning worker, and you must have verification from KCC that a qualifying H2B visa was issued, or you must 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. You then should issue a H2R visa to the worker, provided he or she is otherwise qualified.
d. KCC will check all H2B petitions on which DHS has indicated the beneficiary is a returning worker. If the H2B petition has only one person, KCC will stamp the petition with one of the following stamps:
A) RETURNING WORKER VERIFIED BY KCC
B) POSSIBLE RETURNING WORKER DETERMINED BY KCC
C) NO EVIDENCE OF RETURNING WORKER DETERMINED BY KCC
If the H2B petition has multiple names, 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.
You can rely on KCC's verification if KCC indicates that it has verified issuance of a qualifying H2B visa. However, in some cases there will not be enough biographic data available to confirm previous issuance. If KCC has been unable to confirm that the individual is a returning worker, you will need to verify the previous issuance of an H2B.
e. If an applicant claims entitlement to H2R status, but you find that the applicant was not issued a visa previously, you may still process the applicant under the H2B category if the applicant is otherwise qualified and there are still numbers available under the annual limit. We report to USCIS the number of workers claiming H2R status who are ultimately issued H2Bs, so that CIS may reduce the annual limit accordingly. In order to track these numbers, we created a new quasi-refusal code PH2R. Please enter this refusal code before approving a H2B visa for an applicant who has claimed status under H2R.
RICE
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