H2B Visa Compliance & Defense
Experienced Representation for Meeting Employer’s Obligations Under the H-2B Visa Program and Defending Against Fraud Allegations
Regulatory Lawyer Team Lead
Contact NickFor companies that offer temporary jobs to foreign workers, effectively managing H-2B visa compliance is essential. While companies can use H-2B visas to fill temporary nonagricultural jobs, strict rules and requirements apply—and failure to comply with these rules and requirements can expose companies to steep penalties.
We help companies manage all aspects of H-2B visa compliance. We also defend companies against allegations of H-2B visa fraud and abuse. Whether you want to take a proactive approach to avoiding issues or you need to protect your company against impending irreparable harm, we can provide the advice and representation you need to move forward with confidence.
Avoiding Issues with an Effective H-2B Visa Compliance Program
While the H-2B visa program provides an essential source of temporary labor for many employers, employers that rely on the program must strictly comply with the Immigration and Nationality Act (INA), the Fair Labor Standards Act (FLSA), and various other federal statutory and regulatory provisions. The U.S. Department of Homeland Security (DHS) is strictly enforcing compliance, and the U.S. Department of Labor’s (DOL) Wage and Hour Division plays a role in enforcing compliance as well.
With this in mind, companies that hire foreign nationals under the H-2B visa program need to make compliance a priority. This involves developing and implementing custom-tailored policies and procedures that are designed to both maintain and document compliance on an ongoing basis. Some examples of the requirements for providing temporary employment to H-2B workers that companies should to address in their compliance programs include:
Temporary Labor Certification
Employers seeking to hire H-2B workers must go through DOL’s temporary labor certification application (or temporary employment certification application) process. This involves meeting a wide range of requirements—which employers must also ensure that they continue to meet on an ongoing basis.
H-2B Registration
Employers seeking to hire H-2B workers must also secure an H-2B Registration from DOL as required by law. This involves completing and submitting Form ETA-9155.
Bona Fide Job Opportunity with a Defined Employment Period
H-2B workers must be offered “bona fide” job opportunities working at least 35 hours per week. As DOL explains, “[t]he qualifications and requirements for the job must be listed in the job order and must be consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and geographic area.”
Prevailing Wage (or Minimum Wage) for the Job Order
For each job order submitted under the H-2B program, employers must pay workers compensation, “which equals or exceeds the highest of the prevailing wage [rate] or Federal minimum wage, State minimum wage, or local minimum wage.” Employers must be prepared to satisfy prevailing wage requests from DOL’s Wage and Hour Division from the employment start date for each job order.
Productivity Standards
Employers must include any applicable productivity standards in their job orders. Any productivity standards that an employer submits must apply equally to temporary workers and similarly employed permanent workers.
The “Three-Fourths Guarantee”
As the Wage and Hour Division explains, employers seeking approval for job orders, “must guarantee to offer the workers employment for a total number of work hours equal to at least 75% of the workdays in each 12-week period (or each 6-week period if the job order is less than 120 days).” This is commonly referred to as the “three-fourths guarantee.” It is intended to ensure that prospective workers are treated fairly and assist workers with maintaining an overall living wage.
Visa Costs
Under the federal H-2B program requirements, employers, “must either advance all visa, border crossing, and visa-related expenses to H-2B workers, pay for them directly [on a prospective worker’s behalf], or reimburse all such expenses in the first workweek.” Employers must satisfy (or ensure satisfaction of) various other financial requirements during the visa process as well.
Again, these are just examples. This is not a comprehensive list of the requirements for filling temporary job openings through the H2-B visa program. If you need to know more about H2-B visa compliance, we encourage you to speak with an immigration law attorney at Oberheiden P.C.
Defending Against Allegations of H-2B Program Fraud and Abuse
As stated above, DHS and DOL share enforcement responsibility under the H-2B program. Violations of the program’s requirements can lead to swift enforcement action. This is true even when a violation is a one-time occurrence or is of a temporary nature.
This makes it essential not only for employers to proactively manage compliance, but also to be prepared to affirmatively demonstrate compliance when necessary. When employers cannot affirmatively demonstrate compliance, they can face steep penalties, and loss of H-2B program eligibility can potentially result in employers suffering irreparable harm. Some examples of issues that can expose employers (and potentially their owners and executives) to penalties for H-2B noncompliance include:
- Improperly hiring temporary workers
- Continuing to employ temporary workers after H-2B visa expiration
- Making misrepresentations or omitting information on applications or other forms
- Failing to adequately protect “similarly employed” U.S. citizens
- Committing other violations that adversely affect U.S. citizens
Along with providing H-2B visa compliance representation, we also defend employers accused of H-2B program fraud and abuse. U.S. Citizenship and Immigration Services (USCIS), which is part of DHS, encourages employees and other individuals to report suspected fraud and abuse in all forms. DHS raids, I-9 audits, and other similar law enforcement efforts can lead to invasive scrutiny of employers’ H-2B practices as well.
If your company is facing scrutiny related to its hiring of temporary workers under (or outside of) the H-2B program, it is imperative that you engage experienced defense counsel promptly. At Oberheiden P.C., we have extensive experience representing employers in high-stakes federal law enforcement matters. Our team includes former federal prosecutors and federal agents who have experience on both sides of these matters, and we are available to provide legal representation on an emergency basis when necessary.
FAQs: What Employers Need to Know About Hiring H-2B Workers
What Are the Differences Between H-2A and H-2B Visas for Temporary Workers? Do I Need to Use H-2A or H-2B?
H-2A visas are used to fill temporary agricultural jobs, while H-2B visas are specifically for workers in nonagricultural occupations. As a result, most companies that hire foreign workers on a temporary or seasonal basis will need to adopt and manage an effective H-2B visa compliance program.
Can I Hire H-2B Visa Workers if Sufficient Workers Are Available in the Domestic Labor Market?
Yes, companies are permitted to hire H-2B visa workers even if sufficient workers are available in the domestic labor market. When companies employ U.S. citizens and H-2B workers in similar occupations, this is referred to as “corresponding employment.”
As the Wage and Hour Division explains, “[c]orresponding employment is generally defined as non-H-2B workers performing substantially the same work as that included in [a] job order or substantially the same work as that performed by . . . H-2B workers.” In corresponding employment scenarios, employers must meet the requirements for temporary employment certification with respect to all workers in corresponding employment positions.
Does the H-2B Visa Program Cover Workers’ Family Members?
The H-2B program does not cover workers’ family members directly. However, as USCIS explains, “[a]ny H-2B worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification.” Spouses and children who are in the United States based on H-4 nonimmigrant classification are not eligible for employment.
What is the Current Annual Cap on H-2B Visas?
The statutory numerical limit for H-2B visas is currently 66,000 visas per year. This includes, “33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – Sep. 30).” However, unissued visas from the first half of the fiscal year may be issued in the second half of the year.
What Should I Do if My Company is Under Investigation for H-2B Visa Noncompliance?
If your company is under investigation for H-2B visa noncompliance, you should consult with an experienced defense lawyer promptly. As discussed above, this can be an extremely high-risk scenario not only for employers, but also for their owners and executives. Along with loss of H-2B program eligibility, violations can also lead to fines and other administrative consequences, and allegations of intentionally violating U.S. immigration laws can lead to criminal prosecution in some cases.
Speak with an H-2B Visa Compliance and Defense Lawyer at Oberheiden P.C.
If you have questions or concerns about H-2B visa compliance, we invite you to get in touch. Whether you are seeking to proactively manage H-2B compliance or your company is facing scrutiny from DHS or DOL (or any other federal law enforcement agency), our team can provide the legal advice and representation your company needs. To get started with a complimentary initial consultation, give us a call at 888-680-1745 or contact us online today.
