While the H-2B visa addresses employers’ critical labor needs, it also comes with a set of obligations. Employers who understand and comply with those obligations can reap H-2B’s rewards while avoiding legal hot water.
A detailed list of those obligations can be found on Form ETA-9142B, Appendix B,[1] which the employer will need to review and sign later during the H-2B process. This primer summarizes some notable H-2B obligations in plain language. While this is not meant to replace a thorough review of ETA-9142B, Appendix B, we hope it helps employers decide whether H-2B is the right option for them.
Treat Foreign Workers Fairly
Guarantee Wage and Work Hours. Employers should guarantee H-2B workers at least 35 hours of full-time work per week. Under the “Three-Fourths Guarantee” rule, employers must guarantee, at minimum, enough work hours equal to ¾ of total work days in each 12-week period. Workers’ wage should at least meet the local, state, or federal minimum, or prevailing wage, whichever is highest. Once set, no part of the workers’ base wage can be paid based on commissions, bonuses, or other incentives. Employers can make “reasonable, authorized” wage deductions beyond those required by law, such as if housing is provided to the workers.
Foreign Workers Pay Next to Nothing. Employers cannot make H-2B workers pay for the H-2B process or cost incurred by the employment. This includes any attorney or government fees, as well as transportation into and out of the U.S. Employer must supply H-2B workers with tools, supplies, or equipment needed for the job. If an employer works with a recruiter to find the foreign workers, employer must contractually forbid the recruiter from receiving fees from the workers.
Keep Foreign Workers Informed. Employers must timely supply a few key documents to the H-2B workers, including copy of the H-2B job order that spells out the terms of employment, as well as appropriate earning statements at least once every two weeks. Additionally, employers must place a DOL-provided H-2B poster, which summarizes foreign workers’ rights, at the place of employment.
Other Fair Treatments. Employers must comply with “applicable Federal, State, and local employment-related laws and regulations,” including health and safety laws. If any foreign worker intends to pursue legal means to assert their rights, employers may not “intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against” the worker. Finally, employer may not confiscate or hold the H-2B workers’ visas or other documents.
Treat U.S. Workers Fairly
Do Not Replace U.S. Workers With Foreign Workers. Employers may not hire H-2B workers to worksites with ongoing strike or lockout. Furthermore, employers may not lay off “similarly employed” U.S. workers in the intended occupation and work area for a set period – starting from 120 days before the H-2B job starts, until the H-2B job ends. This requirement may be excepted if there is a “lawful, job-related reasons” for the layoff, and H-2B workers are laid off first.
Recruit U.S. Workers First. Employers must go through mandatory recruitment to give U.S. workers “first dibs” on the temporary job openings. Job postings sent to both the Federal and State government agencies must remain online until 21 days before the temporary jobs open. Employer must post the job order in a conspicuous location at the place of work. If there is a bargaining representative who covers the openings, a job order must be sent to them. Employers must review applications, accept application referrals from the government, and hire U.S. workers who meet the minimum requirements. Employers may only reject applications from U.S. workers for “lawful, job-related reasons.”
Other Fair Treatment. Employers may not offer U.S. workers terms, wages, and working conditions that are less favorable than those offered to foreign workers. Employes also may not impose any restrictions or obligations only on U.S. workers.
Be Candid with the Government
Answer Forms Thoroughly and Accurately. The H-2B process is replete with forms that ask extensive questions. Employers, with help from their attorneys, must provide thorough and accurate information in the forms. Employers must conform with terms of the employment as stated on the forms, including but not limited to: employees’ areas of work, job duties, weekly work schedule, wage, deductions, and overtime pay.
Notify Government of Significant Changes. If an employee cannot complete the terms of employment, the employer must inform the Department of Labor and Department of Homeland Security within two working days. Similarly, an employer must notify government agencies if the temporary positions must end before the expected date for reasons outside the employer’s control, such as fire, natural disaster, or other acts of god.
Keep Thorough Records. Employers are required to keep all records related to the H-2B applications and recruitment for three years from the date the temporary labor certification is certified. This will be crucial in case of audits or investigations initiated by the Department of Labor.
Conclusion
We hope this primer will help you get a sense of what to expect. To learn more about the H-2B visa – its procedures, timeline, costs, risk factors – contact us.
[1] Language in ETA-9142B, Appendix B are extracted from provisions under 29 CFR § 503.16