Staying Compliant with the H-2B Visa Program: Key Requirements Employers Should Know

The H-2B visa program is an essential tool for employers who need temporary non-agricultural workers to meet seasonal or peak labor demands. However, participating in the program comes with strict compliance obligations that employers must carefully follow to avoid costly penalties, including fines, back wages, and even debarment from future participation.

Here are some of the most common compliance challenges employers face under the H-2B program:

1. Adherence to Approved Job Duties and Worksite Locations: Employers must strictly adhere to the job duties and worksite locations specified in the Labor Condition Application and H-2B petition. Any significant changes, such as assigning workers new tasks outside the approved scope or moving them to different locations without filing an amendment, can constitute a violation and trigger enforcement actions.

2. Paying the Required Prevailing Wage: Employers must pay the required prevailing wage to all H-2B workers and any corresponding U.S. workers performing substantially the same duties during the approved period of employment. The wage must be the higher of the prevailing wage determined by the Department of Labor or the actual wage paid to similarly employed workers at the worksite. Employers may not pay U.S. workers less than H-2B workers in the same role, and vice versa.

Additionally, any deductions for housing, transportation, or tools must be lawful, reasonable, and properly disclosed—and may not reduce wages below the required rate. Ensuring wage parity between foreign and domestic workers is a critical compliance area and a frequent focus of DOL enforcement.

3. Maintaining Full-Time Employment Standards: The H-2B program is designed for full-time, temporary jobs—defined as at least 35 hours of work per week. Employers must offer and provide consistent full-time employment throughout the approved period. Repeated short workweeks, lack of available work, or layoffs can lead to findings of noncompliance.

4. Comprehensive Recordkeeping: Employers are obligated to maintain detailed records related to recruitment efforts, wage payments, work hours, and other employment conditions. These records must typically be retained for at least three years and be readily available in the event of a Department of Labor or Department of Homeland Security audit.

5. Consequences of Noncompliance: Noncompliance with H-2B requirements can result in serious consequences, including civil monetary penalties, payment of back wages to affected workers, suspension or revocation of labor certifications, and disqualification from future use of the program.

Employers who rely on the H-2B program must take proactive steps to maintain compliance with all regulatory requirements. This includes staying up to date with prevailing wage determinations, keeping accurate and complete records, and ensuring that all job conditions match those outlined in the initial petition.

If your business participates in the H-2B program—or is considering doing so—consulting with experienced immigration counsel can help ensure that your compliance practices are aligned with federal regulations and best practices.

To learn more about how Kirchner Immigration can support your H-2B workforce strategy, contact us today.

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