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February 5, 2016

Matter of Alcibiades Antonio PENA, 26 I&N Dec. 613 (BIA 2015)

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the INA, if he or she does not fall within any of the exception in section 101(a)(13)(C) of the Act. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) distinguished. 

Matter of Miguel Angel CASTRO-LOPEZ

U.S. Department of Justice 
Executive Offices of Immigration Review 
Board of Immigration Appeal

Cite as 26 I&N Dec. 693 (BIA 2015) 

Interim Decision #3854 693

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), should be measured from the alien’s most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).

H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016

          H-2B Employers Urged to Identify Returning Workers when Filing Petitions
Effective December 18, 2015, H-2B workers identified as “returning workers” are exempted from the fiscal year (FY) 2016 annual H-2B cap of 66,000 visas. See Immigration and Nationality Act (INA) §214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as revised by Consolidated Appropriations Act of 2016 (Public Law 114-113).
A returning worker is defined as an H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means:
  • In general, if you (the employer) submit a petition requesting an employment start date in FY 2016 (from October 1, 2015 – September 30, 2016) for an H-2B worker, the H-2B worker can only be considered a returning worker if he or she had been previously issued an H-2B visa or provided H-2B status between October 1, 2012, and September 30, 2015.
  • If the prospective worker is in the United States in H-2B status, and is seeking to extend his or her stay, change employers, or change the terms and conditions of employment, then the worker would not be counted toward the H-2B cap and you would not need to request that the person be classified as a returning worker.
  • Any prospective H-2B worker who does not qualify as a returning worker will be subject to the FY 2016 H-2B cap unless he or she has previously been counted toward the H-2B cap or is cap-exempt.
Under this legislation, the returning worker program only applies to petitions pending or approved on or after December 18, 2015, requesting named H-2B workers with an employment start date beginning in FY 2016.