- Employment Law Guide
Work Authorization for Non-U.S. Citizens: Temporary Nonagricultural Workers (H-2B Visas)
Compliance Assistance By Law
DOL Agency Assistance
Other Government Assistance
Updated: September 2009
Sections 101(a)(15)(H)(ii)(b) and 214(c)(1),(c)(14), and (g)(1) and (g)(9) of the Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act), as amended and 20 CFR Part 655 Subpart A(http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title20/20cfr655_main_02.tpl) and 8 CFR Part 214.2(h)(6)
Who is Covered
These regulations apply to employers who wish to import temporary nonagricultural workers to work in temporary jobs in the United States when U.S. workers are not available. The Immigration and Nationality Act (INA) requires the Department of Homeland Security (DHS) to consult with appropriate government agencies to determine eligibility for the H-2B program, and DHS has determined that effective administration of the H-2B program requires consultation with the Department of Labor (DOL) to advise whether U.S. workers capable of performing the temporary services or labor are available before determining whether any worker can be admitted. The INA also provides that the number of aliens during any fiscal year who can be issued visas or provided nonimmigrant status cannot exceed 66,000.
Regulations of the U.S. Citizenship and Immigration Services (USCIS) require that employers who file H-2B petitions with USCIS (except for temporary employment on Guam) must include a temporary labor certification from DOL stating that qualified workers are not available in the U.S. and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers.
The employment for which certification is requested must, absent a one-time occurrence, be for no longer than 9 months. The need for the service or labor can be a one-time occurrence, seasonal need, peak load need, or intermittent need. Other detailed information may also be found on the H-2B Certification for Temporary Nonagricultural Work page of the Employment and Training Administration’s Office of Foreign Labor Certification (OFLC) Web site.
For those employers who file an ETA Form 9142B on or after April 29, 2015 the regulations at 20 CFR 655 Subpart A and 29 CFR 503 apply. These regulations state that employers must register prior to filing the applications for certification of temporary nonagricultural jobs. This registration is good for 3 years as long as the job, dates of need, and number of workers do not change significantly (OFLC will announce in the Federal Register when the registration process will commence). The employer must obtain a prevailing wage by filing ETA Form 9141 with the NPC. The employer must then initiate the required recruitment at the same time it files the application for certification of the temporary nonagricultural job, which must be filed no fewer than 75 calendar days and no more than 90 calendar days before the employer’s date of need. Required recruitment includes submitting a job order to the State Workforce Agency (SWA) serving the area of intended employment; publishing two print advertisements, one of which must be on a Sunday; contacting its former U.S. workers, including those laid off in the last 120 days, employed in the same occupation at the same location; and, if there is a union, contacting the local bargaining representative or, if no union is present, posting a job notice in 2 conspicuous locations for 15 consecutive business days. The job order must be posted at the SWA until 21 days prior to the date of need.
The employer will prepare a recruitment report summarizing the results of the effort. The employer must sign the report and include, among other items, the following information:
- Identification of each recruitment source by name
- The name and contact information for each U.S. worker who applied for the job
- Explanation of the lawful job-related reasons for not hiring each U.S. worker
If OFLC denies certification, the employer may appeal to the Board of Alien Labor Certification Appeals. DOL’s Wage and Hour Division is responsible for enforcement of this program.
The employer seeking to employ H-2B workers must attest that the workers will be paid at least the prevailing wage for the occupation in the area of intended employment; the employer must guarantee to offer the workers employment for a total number of work hours equal to at least three-fourths of the workdays in each 12-week period (or each 6-week period if the job order is less than 120 days); and the employer and its attorney, agents, and/or employees may not seek or receive payment from the H-2B worker for any activity related to obtaining employment certification, including payment of the employer's attorney or agent fees, application or DHS petition fees, or recruitment costs. H-2B protections also extend to other workers in the employer's workforce who are found to be in corresponding employment. Workers may file complaints under H-2B or other worker protection laws with a local Wage and Hour Division office.
When the H-2B worker has worked 50% of the job order period, then the employer must reimburse the cost of inbound transportation and subsistence. If the employer terminates the H-2B worker’s employment prior to the end of the job order period or the worker works to the end of the period, the employer is liable for the worker’s return transportation and subsistence costs. Employers are also responsible for inbound and outbound transportation and subsistence costs for corresponding workers who are hired from outside the area of intended employment. Employers are not responsible for subsequent transportation and subsistence costs if the H-2B or corresponding worker absconds prior to the end of the period, and the three-fourths guarantee applies only through the last full 12-week (or 6-week) period.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
The employer must post a DOL-provided poster in English detailing H-2B and corresponding workers' rights and protections in a conspicuous location at each worksite. In addition, the employer must post additional posters if a significant portion of workers are not fluent in English and DOL provides the poster translated into that language. The poster is currently available in Spanish.
Employers certified under H-2B must retain for three years the H-2B Registration, job order, Application, Appendix B, H 2B Petition (DHS Form I-129), and supporting documents. Employers must also retain proof of recruitment efforts, including the job order; advertising; contact with former U.S. workers; contact with bargaining representative(s) or a copy of the posting of the job opportunity, whichever is applicable; and additional employer-conducted recruitment efforts directed by the Certifying Officer, if applicable.
Employers must also keep a copy of the final recruitment report and any supporting resumes and contact information; evidence of contact with U.S. workers who applied for the job opportunity, including documents demonstrating that any rejections of U.S. workers were for lawful, job-related reasons; and evidence of required contact with any former U.S. worker in the occupation and place of employment, including documents demonstrating that the U.S. worker had been offered the job opportunity and either refused it or was rejected for lawful, job-related reasons.
The employer must keep records of each worker’s earnings, hours offered and worked, and the location(s) of work performed. Records of when and how much the employer reimbursed workers for transportation and subsistence costs must also be kept. Employers must keep written contracts with agents or recruiters, including the written contract prohibiting an agent or recruiter from receiving prohibited payments, and the list of identities and locations of persons working for the agent or recruiter, and these entities’ agents or employees (which was provided to DOL at the time of application).
Employers must keep the written notice provided to and informing ETA and USCIS that an H-2B worker or worker in corresponding employment has separated from employment before the end date of employment certified in the Application. Employers must keep any collective bargaining agreement, individual employment contract, or payroll records used to substantiate any claim that certain incumbent U.S. workers are not included in corresponding employment.
Each worker must be provided a wage statement showing total earnings for each workweek in the pay period; hourly rate and/or piece rate; if piece rates are used, the daily units produced by the worker; itemized deductions made from the worker’s wages; the number of hours of employment offered to the worker; hours actually worked by the worker in each workweek of the pay period; beginning and ending dates of the pay period; and the employer’s name, address, and Federal Employer Identification Number (FEIN).
Employees must be paid at least every other week, or according to the prevailing practice in the area of intended employment, whichever is more frequent.
The Save Our Small and Seasonal Businesses Act of 2005 (Act) authorized DHS, effective October 1, 2005, to impose administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as it or its designee determines to be appropriate if an employer is found to have committed a substantial failure to meet any of the conditions of the petition or a willful misrepresentation of a material fact in such petition. DHS delegated its authority to impose sanctions to the Secretary of Labor. The Secretary of Labor may bar employers (and their successors in interest), attorneys, or agents from filing petitions for a period of no more than five years.
Relation to State, Local, and Other Federal Laws
Various federal, state, and local labor standards, such as the Fair Labor Standards Act, apply to H-2B workers employed in the U.S. the same as they apply to other workers.
Compliance Assistance Available
Employers may obtain information on how to apply for a temporary nonagricultural labor certification, including application forms and directives that contain prescribed procedural requirements, from the national office of the OFLC.
DOL provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law” Web page or on WHD’s immigration webpage.
Employment and Training Administration,
Office of Foreign Labor
Tel: 1-877-US2JOBS (1-877-872-5627) or 1-202-693-3010; TTY
The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources of applicable law. Every effort has been made to ensure that the information provided is complete and accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at www.dol.gov/compliance or by calling our Toll-Free Help Line at 1-866-4-USA-DOL (1-866-487-2365) (1-866-487-2365).