H-2B Compliance: Understanding Employer Obligations When H-2B Workers Leave Early or Fail to Report

Most employers who rely on the H-2B visa program are committed to compliance and rarely encounter problems with workers departing before the end of the contract. However, unforeseen departures—whether due to termination, abandonment, or early completion of services—can trigger specific legal obligations. It’s critical for employers to understand these responsibilities in order to remain compliant with Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) regulations and to protect their future participation in the program.

When to Notify DOL and USCIS

Under federal regulations, H-2B employers are required to notify both DOL and USCIS within two working dayswhen certain events occur. Failure to do so may result in penalties or findings of noncompliance. The four main triggering events are:

1. No-Show: The H-2B worker fails to report to work within five (5) workdays of:

   • The employment start date listed on the approved petition, or

   • The actual start date communicated by the employer—whichever is later.

2. Abscondment: The worker stops reporting to work without notice and is absent for five (5) consecutive workdays without the employer’s consent.

3. Termination: The employer dismisses the worker before the end of the certified job order period.

4. Early Completion: The worker completes the assigned work more than 30 days ahead of the certified end date listed in the job order and petition.

Prompt notification helps protect the employer’s compliance record and ensures accurate government tracking of visa usage. Employers should retain confirmation of submission and related correspondence for their records.

How to Notify the Agencies

Employers must separately notify:

• DOL’s Chicago National Processing Center (CNPC) for labor-related compliance issues, including withdrawal of the job order and updates to the worker roster.

• USCIS via the appropriate Service Center to report changes that affect the status of the approved petition.

Each agency may have specific requirements regarding what information must be included (e.g., worker name, petition number, reason for departure). Templates or detailed guidance can be found on the respective agency websites, or your legal advisor can assist with preparation.

Outbound Travel Obligations

Whether an employer is responsible for return transportation costs depends on the reason the worker left the job:

• If the worker is terminated early by the employer or completes the job more than 30 days early, the employer is responsible for outbound transportation and subsistence costs back to the worker’s home country.

• If the worker voluntarily abandons the job or never shows up, the employer is not responsible for return travel costs.

Outbound travel reimbursement must meet or exceed the most economical and reasonable transportation options available. Employers must also provide or reimburse daily subsistence (food and lodging) at a rate not less than the minimums set by DOL, which are updated periodically. Employers should check the most recent wage determination or their H-2B job order for applicable amounts.

The Three-Fourths Guarantee Still Applies—But With Limits

The H-2B program includes a Three-Fourths Guarantee (20 CFR § 655.20(f)), which requires employers to offer a minimum of 75% of the total work hours promised over the certified period of employment. This is calculated by dividing the job order period into weekly segments (12-week or 6-week blocks depending on the job length).

However, this obligation changes depending on how the employment ends:

• If the worker is terminated for cause, abandons the job, or is a no-show, the employer’s obligation to continue meeting the three-fourths guarantee ceases as of the date of departure, as long as proper notification is made to DOL and USCIS within the two-day window.

• Employers should still ensure that the employee has been offered (or paid for) at least three-fourths of the hours in the most recent 12-week or 6-week segment they worked, prior to the separation.

The DOL Fact Sheet on the Three-Fourths Guarantee provides examples and clarifications to help employers calculate hours correctly and avoid violations.

Practical Steps for Employers

To stay compliant and minimize liability, employers should:

• Keep detailed attendance records and track absences in real time.

• Establish clear written policies for reporting absences and disciplinary procedures.

• Notify DOL and USCIS promptly when a triggering event occurs, and keep proof of those communications.

• Document the reason for any termination to show it was for lawful cause if the three-fourths guarantee is to be waived.

• Consult legal counsel before terminating H-2B workers to assess both compliance and potential financial obligations.

Conclusion

Employers participating in the H-2B program must be proactive in managing departures, even when unexpected. Understanding and fulfilling your notification, reimbursement, and wage obligations ensures continued program eligibility and reduces the risk of investigations or penalties. If you have questions about a specific situation—or want to ensure your internal procedures are compliant—reach out to our office for guidance.

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