Part 5: Compliance During and After the Season
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Parts 1 through 4 covered getting workers here. Part 5 is about what happens once they arrive — and what your obligations are from the first day of work through the last day of the season and beyond.
This is the part of the H-2B program that catches employers off guard most often. Not because the requirements are unreasonable, but because no one walked them through it before workers showed up. The compliance obligations in this program are real, detailed, and enforced. By the time a problem surfaces, it is usually already a problem.
Here is what you are actually on the hook for.
Wage Compliance and the "Free and Clear" Requirement
Your H-2B workers must be paid at least the prevailing wage that was determined during the DOL process — for every hour worked, for the entire duration of the season. The regulations require that wages be paid "free and clear," meaning unauthorized deductions, kickbacks, or rebates that reduce pay below the prevailing wage are prohibited. Any deductions beyond what is legally required must be disclosed in the job order and pre-authorized by the worker in writing.
Workers must be paid at least biweekly. And on or before each payday, every worker — both H-2B and corresponding U.S. workers doing substantially the same job — must receive a written pay statement containing total earnings for the pay period, hours offered and hours actually worked tracked separately, the rate of pay, an itemization of all deductions, and the start and end dates of the pay period. Hours offered and hours worked are not the same number and must be tracked separately throughout the season — this is a common gap I see in employer payroll systems.
The Three-Fourths Guarantee
This is one of the most misunderstood obligations in the program. The regulations require employers to offer workers at least three-fourths of the work hours specified in the contract for each 12-week period — or each 6-week period for contracts shorter than 120 days. If you fall short of that guarantee, you owe workers the cash equivalent of the shortfall based on their regular rate of pay.
The guarantee begins with the first workday after workers arrive and continues through the end of the certified contract period. When calculating compliance, you count hours actually worked plus hours that were offered but declined by the worker.
Scope of Work and Worksite Limitations
Workers are limited to the job duties described in your labor certification for the entire duration of the program. The job description that governed your prevailing wage determination and your recruitment period now governs what workers can actually be asked to do. Assigning duties outside the certification — regardless of how minor — is a violation.
Workers can only be deployed to the worksites listed on your certification. Sending workers somewhere that was not on the original application is not a workaround.
Tools, Equipment, and Housing
You are required to provide all tools, supplies, and equipment necessary for the job at no cost to workers — including any required PPE and at least one set of required uniforms. You cannot charge a deposit for any of these items.
If you provide housing, it must be disclosed in the job order, rent cannot exceed fair market value, and all deductions must comply with the FLSA and applicable state law. Housing must be made equally available to H-2B workers and to any non-local U.S. workers who cannot reasonably commute to the worksite daily.
Early Departures and Separation Notices
If a worker leaves before the end of the contract period — whether they quit, abandon the position, or are terminated — you have two business days to notify both USCIS and DOL in writing. Two business days. The notice must go to both agencies, and it must include specific information about the worker, the petitioner, and the reason for separation.
I provide clients with the separation notice process and direct contact information for both agencies as part of onboarding. This is not something to figure out in the moment.
There is an important distinction worth noting: if you fail to comply with the notice requirements, you can be held liable for outbound travel costs and the three-fourths guarantee through the worker's last full 12-week period — even if the worker voluntarily abandoned the job. The notice requirement protects you. Meet it.
Document Retention
DOL can audit H-2B employers through OFLC post-certification audits or Wage and Hour Division investigations, which can include on-site visits and worker interviews. USCIS also conducts compliance checks, particularly for employers. The documentation you maintain is your entire defense.
Retain records for at least three years from the date of certification. Your audit file should include all government filings and approval notices, documentation substantiating your temporary need, proof of recruitment including applicant records and rejection documentation, proof of travel reimbursements, separation notices, and payroll records including hours offered and worked tracked separately for every worker.
Do not allow investigators to leave with original documents, and do not volunteer information beyond what is requested without consulting counsel first.
Worker Contact Information and End-of-Season Obligations
Before workers depart at the end of the season, collect and verify complete contact information for each one: email, phone and WhatsApp, mailing address in the home country, and a secondary contact. H-2B workers receive W-2s, and getting those documents to workers who have returned home requires information collected before they leave.
All final paychecks must be issued before workers depart. W-2s must be sent to each worker at their home country address once available.
Return Transportation and Subsistence
Employers are responsible for return transportation to each worker's home country at the end of the season for all workers who complete the contract or are dismissed early for any reason. You are not responsible for workers who voluntarily resign or abandon the position.
When providing or reimbursing return transportation, you must also cover daily subsistence during travel. DOL's current rates are published annually at flag.dol.gov — always verify the current rate before the season closes as these update each year.
In my experience, booking travel on workers' behalf tends to be more economical and creates a cleaner audit record than reimbursing after the fact.
One More Thing: Don't Hold Documents
This comes up more than it should. You cannot hold, destroy, or confiscate any worker's passport, visa, or other immigration or identity documents — even if requested to do so for safekeeping. Workers must retain possession of their own documents at all times.
Why compliance matters beyond this season
DOL and USCIS FDNS audits are real and the consequences of violations are significant — civil money penalties, back wage obligations, and potential debarment from the program for up to five years for willful or repeat violations. Your compliance record follows you. The investment in doing it right this season protects your access to the program next season.
Part 6 wraps up the series with the most common employer mistakes I see across all of these stages — drawn directly from cases I have worked on — and what to do differently.
If you have compliance questions about your current season or want to make sure your recordkeeping is in order, feel free to reach out.
Meagan Kirchner, Esq., Kirchner Law PLLC
**This article is provided for general informational and educational purposes only and does not constitute legal advice. Reading or interacting with this post does not create an attorney-client relationship. Immigration outcomes depend on individual facts, timing, and government action; nothing in this article should be interpreted as a guarantee of any result.
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