The H-2B Nonimmigrant Program can be greatly beneficial to employers around the United States, but it also has numerous regulations to ensure that employers provide U.S. workers and H-2B workers safeguards and an equal opportunity to work in a safe, healthy and respectable work environment. This post lays out the rules that an employer needs to know in order to comply with the federal laws and regulations governing the employment of nonimmigrant workers.

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General information regarding H-2B Nonimmigrant Employment Program

What is the H-2B Nonimmigrant Employment Program?

This program consists of the hiring of employees outside of the United States by U.S.-based businesses to satisfy workforce needs outside of agricultural work. The Department of Labor describes the H-2B workers as: The temporary employment of foreign workers for seasonal skills in areas other than agriculture

What is the Purpose of the H-2B Nonimmigrant Program?

The goal is to find a balance between providing opportunities to U.S. Workers and satisfying the workforce needs of U.S. Employers. The program seeks to give U.S. employees a fair opportunity to find and apply for jobs for which employers are seeking H-2B workers, and at the same time, giving employers the opportunity to hire foreign workers on a temporary basis in the event that U.S. workers are not available.

What are the Objectives of the Rules Surrounding the H-2B Program?

The Rules surrounding the H-2B program look to enhance and expand the real-time recruitment efforts of U.S. Workers. This means that employers must first offer U.S. employees job opportunities in certain instances. The rules also establish a national electronic job registry to give U.S. workers better access to job searching tools/facilities. Further, the rules look to fortify worker protections regarding: (a) wages, (b) working conditions, and (c) benefits to all workers, including H-2B and U.S. workers alike, which fall under the protections of the applicable federal regulations. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations

What are the Requirements for the U.S. Department of Labor to Issue an H-2B Certification to an Employer?

The U.S. Department of Labor must make certain determinations and findings prior to issuing an H-2B Certification to employers. The following are some of the requirements:

The Department of Labor must determine that there are not sufficient workers to fulfill the temporary service or labor needs in the area in which the employer is looking to hire; and
The wages and working conditions of U.S. workers cannot be adversely affected by the hiring of H-2B workers.

How are the Rules for Employer Requirements and Worker Protections Established?

The U.S. Department of Homeland Security, the Immigration and Nationality Act and Federal regulations relating thereto set forth the Employer requirements and worker protections. In addition to the foregoing bodies of law, the Department of Labor’s Wage and Hour Division controls contracts with employees and the enforcement of laws regarding worker wages.

Which Governmental Entity Controls the Issuance of the H-2B Certifications?

The U.S. Department of Homeland Security (DHS) oversees the issuance of H-2B Certifications. Specifically, the U.S. Citizenship and Immigration Services (USCIS) division controls the specifics of the application and certification process.

What are the Requirements of an Employer Applicant to Obtain H-2B Certification?

There are a number of requirements an employer must satisfy to be eligible to obtain H-2B Certification. The following are a number of the requirements:

The employer must have a Federal Employer Identification Number (FEIN);
The employer must have a physical location (address—not just a PO Box);
The employer must have contact information through which workers and other can contact the employer regarding employment information/possibilities.

What are the Job Categories for H-2B Certification?

There are several types of job categories that an employer seeking to hire under the H-2B certification program, including the following:

Full-Time (this category is for employment of 35 or more hours per week);
Temporary (this category is for employment for a time period of nine months or less, with the exception of one-time occurrences);
Non-Agricultural Employment (within specified areas of intended employment only).

What does the Employer have to Establish to Hire for Non-Agricultural Services?

In order to hire for non-agricultural services, the employer must first establish that the need for labor is temporary in nature. This requirement applies whether or not the position is temporary or permanent.

How is Temporary Need Established?

An employer can establish temporary need by showing that there is a need for any of the following:

One-Time Occurrence;
Seasonal Need;
Peakload Need; or
Intermittent Need.

What is the Maximum Length of Time that a Temporary Need H-2B Employee will be approved?

The maximum amount of time that DHS will approve a temporary need employee is 9 months. There is an exception, however, for One-time occurrence needs, which could be approved for up to 3 years.

Where does the Employer submit the H-2B Application?

The employer should submit the H-2B Application (Form ETA-9142B and Appendices) with supporting documentation and a copy of the job order filed with the SWA to the Chicago National Processing Center.

Timing

When Should the Employer Begin Registering for the H-2B Application?

The employer seeking to hire under the H-2B visa program should register 120 to 150 days prior to the date that the employer will need the workers. There is a lead time for processing applications, and a number of requirements that must be satisfied prior to approval. Thus, an employer is advised to begin the process as soon as possible to ensure that the workers will be approved in a timely manner.

Prevailing Wage Determination

How does an Employer make a Prevailing Wage Determination?

At least 60 days prior to the time the prevailing wage determination is required, an employer can obtain a prevailing wage determination (“PWD”) from the National Prevailing Wage Center (“NPWC”) by submitting an Application for Prevailing Wage Determination (Form ETA-9141).

Job Order

When Should the Employer File a Job Order and Submit the H-2B Application?

Approximately 75 to 90 days prior to the date the workers are needed, the employer should file a job order with the State Workforce Agency (“SWA”).

What Must be Included in the Job Order?

The Job Order has numerous requirements and must be strictly followed in order for the Employer to obtain the issuance of certification under the H-2B program, including, but not limited to the following:

The qualifications and requirements for the job
The qualifications and requirements must be consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and geographic area;
Any minimum productivity standard which the workers must meet in order to retain the job (such standard must be normal and reasonable for non-H-2B employers for the same occupation and geographic area);
Employer is required to offer employment for at least 75% of the workdays for a 12-week period—this requirement is known as the “three-fourths guarantee.”

Employment Requirements, Three-Fourths Guarantee, & Termination

When does the “Three-Fourths Guarantee” Work Period Begin?

The period begins on the later of: (a) the first workday after the worker arrives, or (b) the advertised first day of need.

When does the “Three-Fourths Guarantee” Work Period End?

The three-fourths guarantee work period ends on the last day of the job order.

What Happens if the Employer does not Offer Sufficient Hours to Satisfy the “Three-Fourths Guarantee?”

Regardless of whether the employer offers the worker the sufficient number of hours to satisfy the “three-fourths guarantee,” the employer is still responsible for paying for the time period as if the worker had worked such minimal number of workdays/hours.

What are the Employer’s Options if the Services of a Worker are No Longer Required (before the end date listed on the job order)?

The answer of this depends on the reason the employer no longer requires the services of the laborer. If the basis for no longer needing the worker’s services is due to unforeseeable reasons that are beyond the control of the employer, such as those that may fall under a force majeure clause (i.e., Acts of God, fire, weather, riot, man-made catastrophic event, etc.), then the employer may terminate the job order with approval of the Certifying Officer.

What if a Termination is Approved?

If termination is approved, the employer must still:

Fulfill the three-fourths guarantee up to the time of termination; and
Make reasonable efforts to assist the worker in transferring to comparable employment by taking steps such as searching the State Workforce Agencies and/or national job registry.

If the worker is not transferred, the employer must provide the worker return transportation back to the place where the worker came from (which does not include interim employment by the worker). Typically, this would be the country from where the worker came.

Payment, Expenses, and Wages

What type of Wages does an Employer have to Offer to H-2B Workers?

The H-2B Program requires employers to promise to offer workers a wage that equals or exceeds the prevailing wage rate, the federal, state, or local minimum wage for the occupation in the area of intended employment during the period of the approved H-2B labor certification.

How Frequently does the H-2B Worker Need to Be Paid?

The H-2B workers need to be paid at least every 2 weeks or in accordance with the normal practice in the area of intended employment.

What are Reasonable Deductions from a H-2B Worker’s Paycheck?

See 29 CFR Part 531

What Costs is the Employer Responsible for with Respect to H-2B Workers?

Employers are responsible for paying for numerous costs and expenses, including the following:

All visa, border crossing, and visa-related expenses to H-2B workers. The employer must pay for these in advance or within the worker’s first workweek.
Inbound transportation and subsistence costs to workers traveling to the employer’s worksite;
Return transportation and daily subsistence.

Who is Responsible for Providing the Workers with Equipment and Tools?

The employer is responsible for providing the workers with all equipment, tools, supplies, and materials necessary for the work. Employer is not allowed to charge the workers or require a deposit for such equipment, tools, supplies, or materials.

What Types of Payments are Employers Prohibited from taking from Workers?

Employers and their agents are prohibited from any taking any money from workers for activities related to obtaining employment certification. This includes attorney’s or agent’s fees, application fees, DHS petition fees, or recruitment costs. Payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in-kind payments, and free labor.

What are some other Restrictions Regarding Employers Seeking H-2B Certification?

Employers seeking to hire workers under the H-2B certification program have certain limitations on the job that they are offering. The following are some of the Restrictions imposed upon employers seeking H-2B certification:

The job opportunity cannot discriminate based on race, color, national origin, age, sex, religion, handicap, or citizenship.
There cannot be a lockout or strike at any of the employer’s worksites within the area of intended employment.
Employer may not lay off any similarly-employed U.S. employee in the job and intended area of employment within 120 days prior to the end of the job order, unless all H-2B workers are laid off first.
H-2B workers are only permitted to work in the area of employment that is listed on the approved application, unless a new, revised application is obtained from the Department of Labor.
Employers must notify the Department of Labor and Division of Homeland Security of any separation of a worker from a job within 2 days of such separation.
Employer is prohibited from knowingly holding, destroying, or confistcating workers’ passports, visa, or other immigration documents.

Documentation Retention by Employer

What Type of Documentation does the Employer have to Keep for the Workers?

Given that this is a federal program, the employer would be wise to keep all documentation related to the worker’s employment. This includes: (a) accurate records of the worker’s earnings, (b) hours of work offered to the worker, (c) hours actually worked by the worker. Each worker must receive a paystub showing hours offered, hours actually worked, hourly rate, and/or piece-rate of pay, and if piece-rate pay, the number of units produced. The paystub must also include total earnings for the pay period and any deductions from the wages.

How Long does an Employer have to Retain Documentation Relating to an H-2B Worker?

Employers must retain documentation relating to the H-2B worker, including application and registration documentation, recruitment-related documents, payroll records, and related documents for a period of no less than 3 years.

Corresponding Employment

What is a Corresponding Worker?

A corresponding worker is a non-H-2B worker who works for the employer during the period of a job order and who performs substantially the same work included in a job order or substantially the same work as the H-2B workers.

What Workers are not Included Under the Definition of Corresponding Workers?

There are two categories of workers who do not fall under the definition of Corresponding Worker:

Incumbent Employees who meet the following requirements:
1. Had continuous employment with the employer during the 52 weeks prior to the time set forth in the job order; and
2. Who worked for at least 35 hours per week in at least the last 48 out of 52 workweeks; and
3. Whose terms and working conditions have been significantly reduced by the employer during the period of the job order.

Incumbent Employees covered by a collective bargaining agreement or employment agreement that contains a promise to provide a minimum of 35 hours per week of work and falls under the period of the job order.

Recruit Requirements Under the H-2B Program

What are the Requirements for Recruiting Employees under the H-2B Program?

Employers are required to conduct certain recruitment to verify that there are no U.S. workers who are qualified for the position listed in the Application for H-2B Certification. Employers are required to accept referrals from The Office of Foreign Labor Certification (“OFLC”) and the State Workforce Agency (“SWA”) up to and including 21 days prior to the date of need. Both of said organizations will maintain the job posting on their registries, websites, or databases to provide U.S. workers the opportunity to apply for the position with the employer.

On what grounds can an Employer Reject the hiring of a Qualified U.S. Worker Applicant?

The employer must hire qualified U.S. applicant workers who are available during the period of the job order, unless the employer has lawful, job-related reasons.

What types of Interviews Can the Employer Conduct?

The Employer wishing to interview U.S. workers must conduct interviews by phone or provide a procedure for interviews to be conducted in the location where the worker is being recruited. The idea is to prevent the worker from incurring costs associated with the interview. The employer is not allowed to give preferential treatment to any H-2B worker as compared to any U.S. worker.

How does the Employer Demonstrate Compliance with Recruitment Requirements?

At the conclusion of the recruitment process, the employer must prepare a document called a recruitment report. The document will outline several items, in accordance with 20 CFR § 655.48, including the following:

The names and contact information of all U.S. applicants, whether they were offered a position or rejected, and
The lawful, job-related reasons for any rejections.

The employer must continue to supplement the report and maintain an updated version up to and including 21 days from the date of the need. Further, employers are responsible for advertising the position as described in further detail below.

What Advertising is required for Employer’s Seeking Workers through the H-2B Program?

The employer is required to obtain an advertisement on two separate days, which may be consecutive, one of which must be a Sunday, in a newspaper of general circulation. The advertisement must be located in the area where the employment is intended and must be appropriate to the occupation and the workers that are likely to apply for the position. Newspaper advertisements must satisfy requirements described in 20 CFR § 655.41.

The employer is required to keep copies of the newspaper pages (with date of publication and full copy of the advertisement), or other proof of publication furnished by the newspaper, which is consistent with the document retention requirements set forth in 29 CFR 503.17.

What Does the Employer’s advertising for the H-2B Program have to Include?

All advertising by the employer regarding the open position must include:

The employer’s name and contact information;
The geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job;
A description of the job sufficient to apprise workers of the services that will be performed, as well as minimum education requirements, work hours/days, and anticipated start and end dates;
A statement that the position is temporary or full-time, including total number of openings the employer intends to fill;
A statement as to overtime pay, if applicable, and the amount of such pay;
A statement that on-the-job training will be provided, if applicable;
The wage the employer is offering;
Any board or lodging provided by the employer or employer will assist in securing, if applicable;
A list of all deductions from worker’s paycheck that are not required by law;
A statement that transportation and subsistence from the place where the worker has come to work for the employer to the place where the worker will work for the employer will be provided;
A statement that work tools, supplies, and equipment will be provided to the worker free of charge, if applicable;
A statement that daily transportation will be provided to and from the worksite by the employer, if applicable;
A statement summarizing the three-fourths work guarantee; and
A statement directing applicants to apply at the nearest office of the SWA, SWA’s contact information, and job order number, if applicable.